                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4886



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


THOMAS J. SAVOCA, a/k/a Irvin L. Roddy,

                                             Defendant - Appellant.


                             No. 04-4890



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CARLOS J. SANTOS,

                                             Defendant - Appellant.


Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-03-194)


Submitted:   October 31, 2005           Decided:     November 17, 2005


Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
No. 04-4886 affirmed; No. 04-4890 affirmed in part, vacated in
part, and remanded by unpublished per curiam opinion.


Barron M. Helgoe, VICTOR, VICTOR, & HELGOE, L.L.P., Charleston,
West Virginia; Jacqueline A. Hallinan, HALLINAN LAW OFFICES,
P.L.L.C., Charleston, West Virginia, for Appellants. Charles T.
Miller, Acting United States Attorney, Susan M. Arnold, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

          Thomas J. Savoca and Carlos J. Santos appeal their

convictions and sentences for bank robbery in violation of 18

U.S.C. § 2113(a), (d) (2000) and use of a firearm during a bank

robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2000).

Finding no reversible error with Savoca’s conviction and sentence,

we affirm. We affirm Santos’ conviction, but we vacate his bank

robbery sentence and remand for resentencing in light of United

States v. Booker, 125 S. Ct. 738 (2005).

          Savoca and Santos first claim that the district court

erred in denying their motion for a judgment of acquittal.        We

review the district court’s decision to deny a motion for judgment

of acquittal de novo.    United States v. Gallimore, 247 F.3d 134,

136 (4th Cir. 2001).    If the motion was based on insufficiency of

the evidence, the verdict must be sustained if there is substantial

evidence, taking the view most favorable to the government, to

support it.   Glasser v. United States, 315 U.S. 60, 80 (1942).

          Savoca and Santos assert that the Government failed to

prove that Trader’s Bank was federally insured by the Federal

Deposit Insurance Corporation (FDIC), an essential element of bank

robbery that the government must prove beyond a reasonable doubt.

See 18 U.S.C. § 2113 (2000).      At trial, the Government called

Douglas Robinson, the manager of the bank, to testify.     Robinson

testified that deposits of Traders Bank are insured by the FDIC.


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This court has held that testimony from a bank employee that the

deposits are insured by the FDIC is sufficient evidence from which

the jury may conclude the bank was insured at the time of the

robbery.       See United States v. Gallop, 838 F.2d 105 (4th Cir.

1988).        Furthermore, testimony from a bank employee that the

deposits “are” FDIC insured is sufficient evidence from which the

jury could reasonably infer that the bank was insured at the time

of the robbery.         United States v. Safley, 408 F.2d 603, 605 (4th

Cir. 1969).       Due to the absence of contradictory evidence and

taking all inferences in favor of the Government, the Government

presented sufficient evidence that Traders Bank was FDIC insured on

the date of the robbery.              The district court did not err when it

denied Savoca and Santos’ motion for a judgment of acquittal.

              Savoca    next     claims    that     the   district   court    used

judicially found facts to enhance his sentence from a base offense

level    of    twenty   to   a   level    of   twenty-nine.      Because     Savoca

preserved      this     claim    by     objecting    to   his   career   offender

classification based upon Blakely v. Washington, 124 S. Ct. 2531

(2004), this court’s review is de novo.                   See United States v.

Mackins, 315 F.3d 399, 405 (4th Cir. 2003).               Regardless of whether

the district court impermissibly used judicially found facts for

those initial enhancements, those enhancements became irrelevant

once the district court found that Savoca qualified as a career

offender under U.S. Sentencing Guidelines Manual § 4B1.1 (2004).


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Because Savoca qualified as a career offender, the district court

had to increase Savoca’s offense level to thirty-four for that

reason alone, and the earlier enhancements were subsumed.

          Savoca also claims the district court erred when it found

he was a career offender and enhanced his sentence based on prior

convictions that were not charged in his indictment nor found by

the jury. However, in Almendarez-Torres v. United States, 523 U.S.

224 (1998), the Supreme Court held that the government need not

allege in its indictment and need not prove beyond reasonable doubt

that a defendant had prior convictions for a district court to use

those convictions for purposes of enhancing a sentence. See United

States v. Cheek, 415 F.3d 349 (4th Cir. 2005) (Almendarez-Torres

was not overruled by Booker).

          Savoca finally claims that the district court’s treatment

of the sentencing guidelines as mandatory requires resentencing.

Assuming without deciding that Savoca preserved this claim, we

review the error under the harmless error analysis.      See Booker,

125 S. Ct. at 769.   The government bears the burden in harmless

error review of showing beyond a reasonable doubt that the error

did not affect the defendant’s substantial rights.      Mackins, 315

F.3d at 405.   Affecting substantial rights means that the error

affected the outcome of the proceedings.     United States v. Stokes,

261 F.3d 496, 499 (4th Cir. 2001).      An error in sentencing may be

disregarded if the reviewing court is certain that any such error


                                - 5 -
“did not affect the district court’s selection of the sentence

imposed.”   Williams v. United States, 503 U.S. 193, 203 (1992).

            In this case, the district court demonstrated that it

exercised its discretion in choosing Savoca’s sentence.        The

district court weighed the guideline range against the sentencing

factors and gave Savoca, in the district court’s view, the maximum

possible sentence he could have received while still allowing for

the possibility of a few years out of prison at the end of his

life.   The court characterized Savoca as “one of the worst people”

to have ever appeared before the court, stated that his age was the

only mitigating factor relevant to his sentencing, and commented

that “it’s only the mercy of this court that has kept me from

giving you a life sentence here.” We accordingly conclude that the

district court’s error in sentencing Savoca under the mandatory

guidelines constituted harmless error that did not affect Savoca’s

substantial rights.   Accordingly, we affirm Savoca’s sentence.

            Santos also claims that the district court improperly

enhanced his sentence with judicially found facts under Booker.

Santos first claims that the district court improperly enhanced his

sentence under USSG § 2B3.1(b)(1) because the offense involved a

financial institution and under USSG § 2B3.1(b)(7)(D) because the

loss was greater than $250,000.   However, the facts necessary for

these enhancements were charged in the indictment and found by the

jury.   Count One of the indictment charged Santos with stealing


                               - 6 -
$308,000 from the bank and stated that Trader’s Bank was insured by

the FDIC.         The jury’s guilty verdict was thus a finding that the

loss       was    greater    than   $250,000,    in     satisfaction    of   USSG

§ 2B3.1(b)(7)(D).           By definition, the jury’s finding that Traders

bank was FDIC insured qualified it as a “financial institution” for

USSG § 2B3.1(b)(1).           See 18 U.S.C. § 20(1) (2000).        The district

court did not engage in any impermissible judicial fact finding

under Booker when it increased Santos’ offense level from twenty to

twenty-five.

                 Santos also claims the district court improperly enhanced

his sentence under USSG § 3C1.2 because of a high speed chase

following the bank robbery.            The Government concedes that this

enhancement was improper judicial fact finding and that Santos

should be resentenced.          Without the two level enhancement, Santos’

sentencing guideline range on his bank robbery conviction would

only have been 70-87 months’ imprisonment.                  Santos’ 108 month

sentence for the bank robbery count thus exceeds the sentence that

could have been imposed based only on the facts found by the jury.

In light of Booker, we vacate Santos’ bank robbery sentence and

remand      the    case   for   resentencing.*        Although   the   sentencing

guidelines are no longer mandatory, Booker makes clear that a



       *
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Santos’ sentencing.

                                       - 7 -
sentencing court must still “consult [the] Guidelines and take them

into account when sentencing.”    125 S. Ct. at 767.     On remand, the

district court should first determine the appropriate sentencing

range under the Guidelines, making all factual findings appropriate

for that determination. See United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005) (applying Booker on plain error review).       The

court should consider this sentencing range along with the other

factors described in 18 U.S.C. § 3553(a) (2000), and then impose a

sentence.    Id.   If that sentence falls outside the Guidelines

range, the court should explain its reasons for the departure as

required by 18 U.S.C. § 3553(c)(2) (2000).      Id.   The sentence must

be “within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47.

            Accordingly, we affirm Savoca’s conviction and sentence.

We affirm Santos’ conviction.       In light of Booker, we vacate

Santos’ bank robbery sentence and remand for resentencing.          We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                  No. 04-4886 AFFIRMED
                                         No. 04-4890 AFFIRMED IN PART,
                                         VACATED IN PART, AND REMANDED




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