                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4170



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ALEXANDER BARAJAS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-268)


Submitted:   September 28, 2005           Decided:   October 28, 2005


Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON, P.A.,
Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Randall S. Galyon, 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Unpublished opinions are not binding precedent in this circuit.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:

           Alexander Barajas appeals the 91-month sentence imposed

upon his guilty plea to conspiracy to possess with intent to

distribute in excess of 100 kilograms of marijuana, 21 U.S.C.

§§ 841, 846 (2000).       At sentencing, Barajas received a two-level

enhancement for obstruction of justice, pursuant to United States

Sentencing Guidelines Manual § 3C1.1 (2002), based on the district

court’s finding that Barajas gave conflicting testimony about a co-

defendant’s role in the offense.        Barajas’ base offense level was

determined to be 26.      See USSG § 2D1.1(c)(7).       After applying the

two-level enhancement referenced above, Barajas’ total offense

level was 28; with a criminal history category of I, the resulting

guidelines range was 78-97 months imprisonment.                 Without the

enhancement, the applicable range would have been 63-78 months

imprisonment.

           Barajas claims that the enhancement he received for

obstruction of justice violated the decision announced by the

Supreme Court in Blakely v. Washington, 542 U.S. 296 (2004).

Because   Barajas   did   not   raise   this   issue   at   sentencing,   his

argument is reviewed for plain error. United States v. Hughes, 401

F.3d 540, 547 (4th Cir. 2005) (citing United States v. Olano, 507

U.S. 725, 731-32 (1993)).

           In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court held that the “Sixth Amendment is violated when a


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district court, acting pursuant to the Sentencing Reform Act and

the    guidelines,       imposes    a    sentence     greater   than    the   maximum

authorized by the facts found by the jury alone.”                      125 S. Ct. at

746.        The Court remedied this constitutional violation by severing

and excising the statutory provisions that mandate sentencing and

appellate review under the guidelines, thus making the guidelines

advisory.          Id. at 756-57.

        In Hughes, this court found that Hughes’ sentence exceeded the

maximum sentence authorized by the facts found by the jury alone,

in violation of Booker.             Hughes, 401 F.3d at 547.             Under plain

error review, this court found there was error, the error was

plain, and the error affected Hughes’ substantial rights.                     Id. at

549.        Here, Barajas’ offense level was increased by two levels

based on the court’s determination that his conflicting statements

about        his   co-defendant’s       level   of    responsibility     constituted

obstruction of justice within the meaning of USSG § 3C1.1. Without

this        increase,   his    total    offense      level   would   have   been   26,

resulting in a sentencing range of 63 to 78 months.                     We find that

this constitutes plain error and warrants vacating and remanding

for resentencing.             Hughes, 401 F.3d at 555-56.1             Therefore, we


        1
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Barajas’ sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

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vacate Barajas’ sentence and remand for resentencing.2               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.             Hughes, 401

F.3d at 546. The court should consider this sentencing range along

with the other factors described in 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2005), and then impose a sentence.                Id.   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).     Id.     The sentence must be “within the statutorily

prescribed range and . . . reasonable.”         Id.   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.

                                                       VACATED AND REMANDED




     2
      Because we find that resentencing is warranted due to the
erroneous two-level enhancement Barajas received for obstruction of
justice, we have not addressed his remaining claims challenging the
district court’s denial of a reduction for acceptance of
responsibility or its finding that he did not qualify for the
safety valve reduction. See Hughes, 401 F.3d at 556 n.15.

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