                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4084



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DEMETRIUS DAVIS,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-97-248-L)


Submitted:   May 11, 2005                   Decided:   May 26, 2005


Before MOTZ, TRAXLER, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant.     Thomas M. DiBiagio, United States
Attorney, Christine Manuelian, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Demetrius Davis pled guilty, without the benefit of a

plea agreement, to an indictment charging him with conspiring to

distribute and to possess with intent to distribute “a quantity” of

cocaine and cocaine base (“crack”) and three substantive counts of

distributing a total of fifty-five grams of crack cocaine, 21

U.S.C. §§ 841(a)(1), 846 (2000).        The court sentenced Davis to 210

months imprisonment. He has timely appealed.

           At Davis’ sentencing, the district court found, by a

preponderance of the evidence--and over Davis’ objection--that he

was responsible for 1.5 kilograms of crack cocaine and adopted the

presentence     report’s   recommendation     that     Davis’   sentence    be

enhanced   by   two   levels   for   possession   of    a   firearm.       U.S.

Sentencing Guidelines Manual § 2D1.1(b)(1) (2000). Davis objected

to both sentencing enhancements based on the Supreme Court’s

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the

precursor to Blakely v. Washington, ___U.S.___, 124 S. Ct. 2531

(2004), and United States v. Booker,___U.S.___, 125 S. Ct. 738

(2005).

           On appeal, Davis contends that his sentence violates the

rules announced in both Blakely and Booker, which were decided

while his direct appeal was pending.         In Booker, the Supreme Court

held that the federal sentencing guidelines scheme, under which

courts were required to impose sentencing enhancements based on


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facts found by the court by a preponderance of the evidence,

violated the Sixth Amendment because of its mandatory nature.                Id.

at 746, 750 (Stevens, J., opinion of the Court).                      The Court

remedied the constitutional violation by making the guidelines

advisory through the removal of two statutory provisions that had

rendered them mandatory.       Id. at 746, 756-57 (Breyer, J., opinion

of the Court).

              In light of Booker, we find that the district court erred

in sentencing Davis.         We of course offer no criticism of the

district judge, who followed the law and procedure in effect at the

time of Davis’ sentencing.      Accordingly, although we affirm Davis’

conviction, we vacate his sentence and remand for proceedings

consistent with Booker. 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 IN PART, AND REMANDED




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