United States v. Silver , 208 F. App'x 201 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4872
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK ADAM SILVER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(CR-05-451-HFF)
Submitted: October 11, 2006 Decided: December 5, 2006
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Beattie B. Ashmore, PRICE, PASCHAL & ASHMORE, P.A., Greenville,
South Carolina, for Appellant. Jonathan Scott Gasser, Assistant
United States Attorney, Columbia, South Carolina, Maxwell Barnes
Cauthen, III, OFFICE OF THE UNITED STATES ATTORNEY, Greenville,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Adam Silver pled guilty to one count of possession
of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)
(2000). He was sentenced to fifty months in prison. His attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), asserting that Silver’s sentence is unreasonable but
stating that there are no meritorious grounds for appeal. Silver
has filed a pro se informal brief raising additional issues,1
including the district court’s failure to rule on his objection to
the presentence report (PSR). We affirm the conviction. However,
because the district court did not resolve Silver’s objection to
the PSR, we vacate the sentence and remand for resentencing.
Silver’s base offense level was 17. See U.S. Sentencing
Guidelines Manual § 2G2.2(a) (2003). Two levels were added because
the material involved a prepubescent minor or a minor under age
twelve, see USSG § 2G2.2(b)(1), and four levels were added because
some material depicted sadistic, masochistic, or other violent
conduct. See USSG § 2G2.2(b)(3). The offense level was increased
by two levels because the offense involved use of a computer, see
USSG § 2G2.2(b)(5), and by three levels because the offense
involved at least 150, but fewer than 300, images. See USSG
§ 2G2.2(b)(6)(B). Three levels were subtracted for acceptance of
responsibility. See USSG § 3E1.1. Silver’s total offense level
1
The motion to file the supplemental brief is granted.
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was 25. His criminal history category was I, and his advisory
guideline range was 57-71 months.
Silver objected to the four-level increase based on the
depiction of sadistic, masochistic, or other violent conduct. At
sentencing, the district court failed to rule on the objection.
Rather, the court merely stated that a ruling in Silver’s favor
would result in a guideline range of 37-46 months, while an
unfavorable ruling would result in a range of 57-71 months.
Without deciding the contested issue, the court sentenced Silver to
fifty months in prison. The court stated that it was taking into
account the factors set forth at 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2006) when imposing sentence.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence to determine whether it “is within the
statutorily prescribed range and . . . reasonable.” United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citations
omitted). Hughes prescribed a specific methodology for district
courts to follow when sentencing defendants. The first step is for
the court to “correctly determine, after making appropriate
findings of fact, the applicable guideline range.” Hughes, 401
F.3d at 432. A district court’s failure to make a necessary
factual finding renders a sentence procedurally unreasonable.
United States v. Moreland, 437 F.3d 424, 434 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006).
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Here, the district court did not comply with the first
step of the Hughes model: by not ruling on Silver’s objection to
the four-level increase, the court failed to make a necessary
finding of fact. For this reason, Silver’s sentence is
procedurally unreasonable, and we must vacate his sentence and
remand for resentencing.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.2
Accordingly, we affirm the conviction but vacate the sentence and
remand for resentencing. This court requires counsel to inform his
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy of the motion was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately set
2
The additional issues raised in the pro se brief do not
warrant reversal. First, Silver merely speculates that an
investigator was related to his probation officer and that the
existence of the relationship caused the investigator to exert
undue influence over the probation officer when she prepared the
PSR. Second, home detention as a sentencing option is a matter
that the district court may, if appropriate, consider at
resentencing.
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forth in the materials before the court and argument would not aid
the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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