                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4404



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellant,

          versus


ANTHONY WAYNE SILVER,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CR-04-62)


Submitted:   March 3, 2006                 Decided:   April 20, 2006


Before WIDENER and TRAXLER, Circuit Judges, and Cameron McGowan
CURRIE, United States District Judge for the District of South
Carolina, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Eric D. Goulian, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellant. C. Douglas Fisher, Hillsborough, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Anthony Wayne Silver was convicted of conspiracy to distribute

and possess with intent to distribute more than 50 grams of cocaine

base.    See 21 U.S.C.A. §§ 841(a), 846 (West 1999).              The Presentence

Investigation Report (PSR) determined that Silver should be held

responsible for 2.143 kilograms of cocaine base distributed as part

of the conspiracy, based in part upon information from witnesses

who did not testify at trial.            This recommended amount yielded a

base offense level of 38.             See U.S.S.G. § 2D1.1(c)(1).         The PSR

also recommended that the sentencing court impose a two-level

firearm enhancement, see U.S.S.G. § 2D1.1(b)(1), and reject a

downward adjustment for acceptance of responsibility, see U.S.S.G.

§ 3E1.1(a).     Accordingly, the total offense level assigned by the

PSR was 40.          After determining that Silver’s criminal history

placed    him   in    category   I,    the   PSR   arrived   at    a   recommended

sentencing range of 292 to 365 months.

     The district court concluded that under United States v.

Booker, 543 U.S. 220 (2005), Silver’s “base offense level may not

be based on any facts not found specifically by the jury,”                   J.A.

156, and determined that the appropriate base offense level was 32,

which is prescribed by the “guidelines for possession with intent

to distribute more than [50 grams of] cocaine base.”                    J.A. 156.

Essentially, the district court read Booker as precluding it from




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considering, for sentencing purposes, any facts not specifically

presented to and found by the jury.

     The     district   court    also       determined,    contrary     to     the

recommendation of the PSR, that a two-level downward adjustment for

acceptance of responsibility was appropriate even though Silver

pled not guilty and testified at trial that he did not sell crack

to various witnesses who claimed that they made purchases from him.

After adopting the two-level firearm enhancement, the district

court arrived at a total offense level of 32, yielding a sentencing

range of 121 to 151 months, and imposed a low-end sentence of 121

months.

     The   Government   appeals,     arguing     that     the   district     court

erroneously determined that it could not consider, for purposes of

determining the appropriate offense level, “any facts not found

specifically by the jury.”       J.A. 156.     In Booker, the United States

Supreme Court held that the mandatory application of the Sentencing

Guidelines    to   enhance   a    defendant’s     sentence      based     on   the

sentencing    court’s   factual    determinations         offends   the      Sixth

Amendment.     See Booker, 543 U.S. at 226-30, 243-46.              Therefore,

Booker severed and excised the statutory provisions mandating the

application of the Guidelines; however, Booker clearly requires

sentencing courts to continue to “consult [the] Guidelines and take

them into account when sentencing,” despite the now-advisory nature

of the Sentencing Guidelines.       Id. at 264.


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      In United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),

which was decided after the sentencing hearing in this case, we

outlined the procedure that sentencing courts in this circuit

should follow in light of Booker. First, the sentencing court must

“calculate (after making the appropriate findings of fact) the

range prescribed by the guidelines.”              Id. at 546 (emphasis added).

Next,   the   court   must    consider        whether   a       sentence   within   the

advisory guideline range “serves the factors set forth in § 3553(a)

and, if not, select a sentence that does serve those factors.”

United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006).                           In

turn, to select a sentence that serves the § 3553(a) factors, the

sentencing court “should first look to whether a departure is

appropriate based on the Guidelines” and, “[i]f an appropriate

basis for departure exists, the district court may depart.” United

States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006).                        “If the

resulting departure range still does not serve the factors set

forth in § 3553(a), the court may then elect to impose a non-

guideline sentence (a ‘variance sentence’).”                      Id.   Regardless of

the sentence ultimately imposed, the district court must explain

its   reasons   for   choosing      a   given     sentence,        especially   if    a

departure or variance is involved.               See id.; Hughes, 401 F.3d at

546 & n.5.

      Because   Booker       does   not   preclude          a    sentencing   court’s

consideration of facts not specifically found by the jury, we


                                          4
vacate Silver’s sentence and remand for resentencing.            On remand,

the district court should first calculate, based upon its own

findings of fact, the appropriate sentencing range pursuant to the

Guidelines.    The court should then proceed to determine whether a

sentence within the advisory Guideline range satisfies the factors

set forth in 18 U.S.C.A. § 3553(a), as explained in Hughes, and our

recent decisions in Green and Moreland.

     In view of our conclusion that Silver must be resentenced in

accordance with the procedures identified above, we need not decide

the other issue raised by the Government -- whether the district

court lacked a sufficient basis for downwardly adjusting Silver’s

offense level for acceptance of responsibility.        We note, however,

that Silver pled not guilty, forced the government to proceed to

trial, and then testified at trial that he did not sell crack

cocaine. The Guidelines commentary explains that an adjustment for

acceptance    of   responsibility   “is   not   intended   to   apply   to   a

defendant who puts the government to its burden of proof at trial

by denying the essential factual elements of guilt.”               U.S.S.G.

§ 3E1.1, comment. (n.2); see United States v. Dickerson, 114 F.3d

464, 470 (4th Cir. 1997) (“Although a defendant can remain eligible

for a sentence reduction for acceptance of responsibility even when

he demands a trial, this is only when a defendant goes to trial to

assert and preserve issues that do not relate to factual guilt--

such as a constitutional challenge to a statutory provision . . .


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.”) (internal quotation marks omitted).   Our review of the record

reveals no apparent basis for awarding an adjustment for acceptance

of responsibility; however, we will leave this for the district

court to consider as part of Silver’s resentencing.



                                              VACATED AND REMANDED




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