                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4834



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


WILLIAM ROCKY PAULEY, JR.,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (2:05-cr-00178-1)


Submitted:   April 9, 2007                   Decided:   May 8, 2007


Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


John G. Hackney, Jr., Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, W. Chad Noel, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          After pleading guilty to conspiracy to distribute five or

more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

846 (2000), and conspiracy to launder monetary instruments, in

violation of 18 U.S.C. § 1956(a)(1)(A)(I), (h) (2000), William

“Rocky” Pauley, Jr., was sentenced to 210 months’ imprisonment. On

appeal, Pauley argues that the district court misunderstood the

scope of its discretion under United States v. Booker, 543 U.S. 220

(2005).

          Prior to announcing Pauley’s sentence, the district court

made the following statements on the record:

     I do not have the authority to show mercy and impose any
     sentence that I want. I have to meet a very rigid and
     very inflexible standard in order to impose any sentence
     other than a sentence that is within the Sentencing
     Guidelines. . . .

     Now, if you were to interpret the Supreme Court’s opinion
     in Booker, the remedial opinion . . . then certainly a
     sentence less than 210 months would certainly be
     justified in this case as reasonable . . . .

     [But] I do not believe under the standard set by the
     Fourth Circuit that a sentence below this could be
     justified as reasonable. That is to say, I want to make
     clear on the record so you have it for appeal or any
     other purpose that I feel constrained by the guidelines.
     I feel very little difference exists between the advisory
     guidelines, so-called advisory guidelines as interpreted
     by our circuit and other circuits and the mandatory
     guidelines that were in effect prior to the decision in
     Booker. . . .

     I have to make it clear . . . that the guidelines
     control. They’re still there. They’re no different than
     they were before.


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(J.A. at 79-81.)

     After reviewing this record, it is obvious the district court

misunderstood our precedents and its role in sentencing.                      We

therefore agree that the district court sentenced Pauley while

operating   under     the   erroneous   belief   that    its    discretion    to

sentence    Pauley     outside    the   guideline       range    was      “almost

nonexistent.”    Under our post-Booker cases, a district court may

impose a sentence below the guidelines range if, after assessing

the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), it

believes such a sentence is “sufficient, but not greater than

necessary,” to achieve the goals of § 3553(a).            See United States

v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006) (internal quotation

marks and citation omitted).        Although we do not accord district

courts a free hand with respect to departures and               variances, see

United States v. Moreland, 437 F.3d 424, 434 (4th Cir.), cert.

denied, 126 S. Ct. 2054 (2006), we also do not foreclose a sentence

outside the properly calculated guidelines range if accompanied by

an explanation that makes the final sentence a reasonable one.

     Because    the    record    indicates   that   the        district    court

misunderstood our precedent, we vacate its judgment and remand for

resentencing consistent with this opinion.*         We dispense with oral

argument because the facts and legal contentions are adequately


     *
      Nothing in this opinion should be read to suggest that we
have formed any view regarding the appropriate outcome of Pauley’s
resentencing.

                                   - 3 -
presented in the materials before the court and argument would not

aid the decisional process.



                                             VACATED AND REMANDED




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