United States v. Pacheco , 159 F. App'x 495 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4097
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICARDO PACHECO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-250)
Submitted: August 29, 2005 Decided: December 19, 2005
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela
Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ricardo Pacheco appeals his 76-month sentence pursuant to
a guilty plea for reentry of a deported alien felon, in violation
of 8 U.S.C. § 1326(a), (b)(2) (2000). His sole argument on appeal
is that a remand is warranted because he was sentenced under a
mandatory application of the Federal Sentencing Guidelines, in
violation of United States v. Booker, 125 S. Ct. 738 (2005). We
affirm Pacheco’s conviction, vacate the sentence, and remand for
further proceedings.1
Pacheco asserts that he should be resentenced in light of
Booker because the district court sentenced him under the mandatory
Sentencing Guidelines scheme. In United States v. White, 405 F.3d
208 (4th Cir. 2005), we held that treating the Guidelines as
mandatory constitutes error under Booker. See id. at 216-17.
Because we find error and the Government raises no objections to
resentencing, we vacate the sentence, and remand for further
proceedings.2 We also affirm Pacheco’s conviction. We dispense
1
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 Pacheco’s sentencing.
2
Although the Guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the] Guidelines
and take them into account when sentencing.” 125 S. Ct. at 767
(Breyer, J., opinion of the Court). On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. Hughes, 401 F.3d at 546. The court should consider
this sentencing range along with the other factors described in 18
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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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a
sentence. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &
Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.
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