                            ON REHEARING

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4018



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


TIMOTHY LLOYD JEFFERS,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-03-209)


Submitted:   May 18, 2005                  Decided:    July 28, 2005


Before WIDENER, GREGORY, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

            Timothy Lloyd Jeffers petitions this Court for rehearing

of his earlier appeal.       In light of United States v. Booker, 125 S.

Ct. 738 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.

2005), we grant the petition for rehearing and find that the

district court plainly erred in imposing a sentence that exceeded

the maximum allowed based on facts established by Jeffers’ guilty

plea.

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

Supreme Court held that Blakely v. Washington, 124 S. Ct. 2531

(2004), applies to the federal sentencing guidelines and that the

mandatory     guidelines      scheme   which    provides     for    sentence

enhancements based on facts found by the court violated the Sixth

Amendment; the Court remedied the constitutional violation by

severing    and   excising    the   statutory   provisions   that    mandate

sentencing and appellate review under the guidelines, thus making

the guidelines advisory.        125 S. Ct. at 746-48, 755-56 (Stevens,

J.), 756-57 (Breyer, J.).           Subsequently, in United States v.

Hughes, 401 F.3d 540 (4th Cir. 2005), this court held that a

sentence that is enhanced based on facts found by the court, not by

a jury (or, in a guilty plea case, admitted by the defendant),

violates the Sixth Amendment and constitutes plain error that

affects the defendant’s substantial rights and warrants reversal

under Booker when the record does not disclose what discretionary


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sentence the district court would have imposed under an advisory

guideline scheme.        Hughes, 401 F.3d at 545-56 (citing United

States v. Olano, 507 U.S. 725, 731-32 (1993)).

             Jeffers’ case involves a Sixth Amendment violation, and

is therefore analyzed under Hughes.            Jeffers’ base offense level

was 6.   USSG § 2B1.1.     He received enhancements of fourteen levels

based on the district court’s findings that he was responsible for

a loss of $320,164 and abused a position of trust.           The information

and factual basis for his guilty plea established only a loss of

$105,164.    Without the enhancements, Jeffers’ offense level would

have been 6, further reduced to 4 by the adjustment for acceptance

of responsibility, and his guideline range would have been 0-6

months rather than 24-30 months.1              Thus, the maximum sentence

authorized by the facts Jeffers admitted pursuant to his guilty

plea was six months.       Hughes, 401 F.3d at 547.         Because Jeffers’

twenty-four-month sentence was longer as a result of the Sixth

Amendment violation, his substantial rights were affected.            Id. at

548-49. Because, as in Hughes, the district court did not indicate

what sentence it would impose under an advisory guideline scheme,

we exercise our discretion to notice the error.2


     1
      Even if Jeffers had not received an adjustment for acceptance
of responsibility, his guideline range would have remained 0-6
months. USSG § 5A (Sentencing Table).
     2
      Just    as   we   noted   in   Hughes,   “[w]e   of   course offer no
                                                               (continued...)


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               We     therefore   vacate   the    sentence     and   remand   for

proceedings consistent with Booker and Hughes.3                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
      (...continued)
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Jeffers’ sentencing. Hughes,
401 F.3d at 545 n.4. 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).
       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.


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