                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 06-5162



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JAMES EDWARD BYRD, III,

                Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                       (S. Ct. No. 07-7068)


Submitted:   April 24, 2008                 Decided:   May 13, 2008


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Don Willey, Jefferson, North Carolina, for Appellant. Gretchen C.
F. Shappert, United States Attorney, Charlotte, North Carolina; Amy
E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              A jury convicted James Edward Byrd, III, of conspiracy to

distribute and possess with intent to distribute fifty grams or

more of crack cocaine, in violation of 21 U.S.C. § 846 (2000), and

the district court sentenced him to 360 months of imprisonment. In

a    prior   appeal,    we   affirmed    Byrd’s    conviction,      vacated    his

sentence,     and     remanded   for   resentencing    in    light    of    United

States v. Booker, 543 U.S. 220 (2005).            See United States v. Byrd,

151 F. App’x 218 (4th Cir. 2005).              On remand, the district court

resentenced Byrd to a 240-month term of imprisonment, and we

affirmed.      See United States v. Byrd, 238 F. App’x 948 (4th Cir.

2007), vacated, 128 S. Ct. 1073 (2008).            This case now is before us

on   remand    from    the   United    States   Supreme     Court   for    further

consideration in light of Gall v. United States, 128 S. Ct. 586

(2007).

              In sentencing a defendant after Booker, a district court

must engage in a multi-step process.                 First, the court must

correctly calculate the appropriate advisory guidelines range.

Gall, 128 S. Ct. at 596 (citing Rita v. United States, 127 S. Ct.

2456, 2465 (2007)).          The court then must consider that range in

conjunction with the § 3553(a) factors.             Id.     The court “may not

presume that the Guidelines range is reasonable” but, rather, “must

make an individualized assessment based on the facts presented” in

determining an appropriate sentence.            Id. at 596-97.      If the court


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determines that a sentence outside of the guideline range is

appropriate, the court “must consider the extent of the deviation

and ensure that the justification is sufficiently compelling to

support the degree of the variance.”             Id. at 597.    The district

court also must “adequately explain the chosen sentence to allow

for meaningful appellate review.”         Id.

          Appellate review of a district court’s imposition of a

sentence (whether inside or outside of the guideline range) is for

abuse of discretion.        Id.; see also United States v. Pauley, 511

F.3d 468, 473 (4th Cir. 2007).        The appellate court:

     must first ensure that the district court committed no
     significant procedural error, such as failing to
     calculate (or improperly calculating) the Guidelines
     range, treating the Guidelines as mandatory, failing to
     consider the § 3553(a) factors, selecting a sentence
     based on clearly erroneous facts, or failing to
     adequately explain the chosen sentence--including an
     explanation for any deviation from the Guidelines range.
     Assuming that the district court’s sentencing decision is
     procedurally sound, the appellate court should then
     consider the substantive reasonableness of the sentence
     imposed under an abuse-of-discretion standard.       When
     conducting this review, the court will, of course, take
     into account the totality of the circumstances, including
     the extent of any variance from the Guidelines range.

Gall, 128 S. Ct. at 597.

          In   light   of    Gall,   we   find   that   the   district   court

committed a significant procedural error in sentencing Byrd.              The

court noted at the beginning of the sentencing hearing that the

applicable guideline range was 360 months to life imprisonment but

that the range would “be capped at 240 months” (JA-I at 398), the


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statutory maximum established in accordance with United States v.

Collins, 415 F.3d 304, 311-15 (4th Cir. 2005).                    However, in

sentencing Byrd, the district court applied the guideline range of

360   months    to   life   imprisonment   as   the    starting    point   for

determining whether a variance was warranted rather than starting

with a guideline range of 240 months.       The district court declined

to go below the 240-month statutory maximum sentence, noting that

the original guideline range was “considerably in excess of 240

months.”       (JA-I at 408).     Because the district court did not

consider the § 3553(a) factors in conjunction with the correct

guideline range of 240 months, we conclude that the district court

procedurally erred.

           Accordingly, we vacate Byrd’s sentence and remand for

further proceedings consistent with Gall.             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.



                                                       VACATED AND REMANDED




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