                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-4487



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


WILLIAM ANTONIO SEHEN,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville. Norman K. Moon, District Judge.
(CR-02-128)


Submitted:   June 15, 2005                 Decided:    July 14, 2005


Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Roland M.L. Santos, Harrisonburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Anthony P. Giorno, Assistant
United States Attorney, Roanoke, Virginia, for Appellee


Unpublished opinions are not binding precedent in this circuit.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

            William Sehen was convicted by jury of possession of five

grams or more of methamphetamine with intent to distribute, in

violation of 21 U.S.C. § 841 (2000).        The district court sentenced

him under the federal Sentencing Guidelines to a 121-month term of

imprisonment.     This sentence was based, in part, on the court’s

findings concerning characteristics of the offense.           Specifically,

the court enhanced Sehen’s base offense level based on its findings

that Sehen proffered a dangerous weapon and for obstruction of

justice.

            Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), and

United States v. Booker, 125 S. Ct. 738 (2005), Sehen asserts for

the first time on appeal that his sentence is unconstitutional. In

Booker,    the   Supreme   Court   held    that   the   federal   Sentencing

Guidelines, under which courts were required to impose sentencing

enhancements based on facts found by the court by a preponderance

of the evidence, violated the Sixth Amendment because of their

mandatory nature.     125 S. Ct. 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 (Stevens,

J., opinion of the Court); id. at 756-57 (Breyer, J., opinion of

the Court).      Although Sehen did not raise this Sixth Amendment

challenge at sentencing, this court has held that a mandatory


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enhancement       based    on    judicial   fact-finding      supported   by    a

preponderance of the evidence constitutes plain error warranting

correction.       United States v. Hughes, 401 F.3d 540, 547-48 (4th

Cir. 2005) (citing United States v. Olano, 507 U.S. 725, 731-32

(1993)).

               In light of Booker and Hughes, we find that the district

court plainly erred in sentencing Sehen.1            Therefore, we affirm his

conviction,2      vacate   his    sentence,    and   remand   for   proceedings

consistent with Hughes.3         Id. at 546 (citing Booker, 125 S. Ct. at

764-65, 67 (Breyer, J., opinion of the Court)).               We dispense with

oral       argument   because    the   facts   and   legal    contentions      are




       1
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time of Sehen’s sentencing.” 431 F.3d at 545 n.4.
       2
      To the extent Sehen contends Booker undermines the validity
of his conviction, we reject this argument.
       3
      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. § 3553(a)
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. § 3553(c)(2). Id. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.

                                       - 3 -
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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