United States v. Savage , 171 F. App'x 970 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4576
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES ANTHONY SAVAGE, a/k/a Mario J.
Racanelli, a/k/a John Anthony Savage, a/k/a
Egisto Grandoni, a/k/a Max Marrache, a/k/a
Greg Masonotti, a/k/a M. John Delano, a/k/a
Robert Toliano, a/k/a Grandoni Egistot, a/k/a
Mark Racanelli, a/k/a John Racanelli,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-9917)
Submitted: February 3, 2006 Decided: March 21, 2006
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Peter Goldberger, Pamela A. Wilk, Ardmore, Pennsylvania, for
Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before us on remand from the United States
Supreme Court. We previously affirmed James A. Savage’s
convictions and sentence for his role in a lengthy conspiracy to
defraud investors through bogus investment schemes. United
States v. Savage, 390 F.3d 823 (4th Cir. 2004). The Supreme Court
vacated our decision and remanded Savage’s case for further
consideration in light of United States v. Booker, 125 S. Ct. 738(2005).
A Sixth Amendment error occurs when a district court
imposes a sentence greater than the maximum permitted based on
facts found by a jury or admitted by the defendant. Booker, 125 S.
Ct. at 756. Our review of the record discloses that Savage’s
sentence was enhanced on multiple grounds based on facts not found
by the jury or admitted by Savage. Because the verdict involved
only an unspecified financial loss, Savage’s base offense level is
six. See U.S. Sentencing Guidelines Manual § 2F1.1(a) (2001).
When combined with Savage’s criminal history category of IV, the
resulting sentencing range is zero to six months’ imprisonment.
See USSG Ch. 5, Pt. A, table. The district court’s sentence of 250
months far exceeds this range.* Accordingly, we conclude, as the
*
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 Savage’s sentencing.
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Government concedes, that the sentence was imposed in violation of
Savage’s Sixth Amendment rights. See Booker, 125 S. Ct. at 756.
We vacate the sentence imposed by the district court and
remand for resentencing in accordance with Booker. Although the
Sentencing 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. On
remand, the district court should first determine the appropriate
sentencing range under the Guidelines, making all factual findings
appropriate for that determination. See United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005) (applying Booker on plain error
review). The court should consider this sentencing range along
with the other factors described in 18 U.S.C. § 3553(a) (2000), and
then impose a sentence. Id. If that sentence falls outside the
Guidelines range, the court should explain its reasons for imposing
a non-Guidelines sentence as required by 18 U.S.C. § 3553(c)(2)
(2000). Id. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. at 546-47. We affirm
Savage’s convictions for the reasons stated in our opinion of
December 10, 2004. 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.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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