                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-4619



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JOHN WILLIAM LOFLIN,

                                            Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-5084)


Submitted: May 25, 2007                       Decided:   July 9, 2007


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Patricia A. Kurelac, Moundsville, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Shawn Angus Morgan,
Assistant United States Attorney, Clarksburg, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            This case is before us on remand from the United States

Supreme    Court   for   further   consideration    in   light   of   United

States v. Booker, 543 U.S. 220 (2005).         In United States v. Loflin,

91 F. App’x 873 (4th Cir. 2004), vacated, 543 U.S. 1100 (2005), we

affirmed John William Loflin’s conviction on three counts of

traveling interstate with intent to engage in sexual relations with

a juvenile (Counts 3, 5, and 7), in violation of 18 U.S.C.

§ 2423(b) (2000), and three counts of interstate travel to engage

in criminal sexual activity with a juvenile (Counts 4, 6 and 8), in

violation of 18 U.S.C. § 2423(a) (2000).            We also affirmed his

144-month sentence for each count to run concurrently. The Supreme

Court    granted   Loflin’s   petition   for    certiorari,   vacated   our

judgment, and remanded for further consideration in light of

Booker.    After reviewing Loflin’s appeal in light of Booker, we

vacate his sentence and remand for resentencing.1

            Loflin contends that his sentence violates the Sixth

Amendment because the district court at sentencing accepted the

presentence report and increased his base offense level by two



     1
      Disposition of this appeal was delayed as this court had not
decided whether Booker applied to the child and sex crimes of which
Loflin had been convicted.    See 18 U.S.C.A. § 3553(b)(2) (West
Supp. 2007). This court has now held that Booker applies to such
crimes. See United States v. Hecht, 470 F.3d 177, 178 (4th Cir.
2006) (“[W]e agree that section 3553(b)(2) violates the rationale
of Booker, that Hecht’s sentence must be vacated, and that the
action must be remanded for resentencing.”).

                                     2
levels for each of the following factors: (1) undue influence under

U.S. Sentencing Guidelines Manual (“USSG”) § 2A3.2(b)(2)(B) (2000),

(2) using a computer or Internet access device to persuade, induce,

entice, or coerce the victim to engage in prohibited sexual conduct

under USSG § 2A3.2(b)(3), and (3) obstruction of justice based on

perjured testimony pursuant to USSG § 3C1.1.          Thus, Loflin argues

that his total offense level was increased by six levels based upon

facts not found by the jury or admitted by him.

             Because Loflin did not raise a Sixth Amendment issue in

the district court, we review for plain error.          United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005).           To demonstrate plain

error, Loflin must establish that error occurred, that it was

plain, and that it affected his substantial rights. Id. at 547-48.

If a defendant satisfies these requirements, our discretion is

appropriately exercised only when failure to do so would result in

a miscarriage of justice, such as when the defendant is actually

innocent or the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.       Id. at 555.

             In Booker, the Supreme Court held that the mandatory

manner in which the federal Sentencing Guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

543   U.S.   at   226-27.   The   Court   remedied    the   constitutional

violation by making the Guidelines advisory through the removal of


                                    3
two statutory provisions that had rendered them mandatory.        Id. at

227.

           Here, the district court sentenced Loflin under the

then-mandatory federal Sentencing Guidelines by making the above

three determinations. These findings raised Loflin’s total offense

level from 27 to 33.    Without the disputed enhancements, Loflin’s

advisory   sentencing   range   would   have   been   70-87   months   of

imprisonment, given his criminal history category of I.        Thus, in

light of Booker and Hughes, we find that the district court’s plain

error in sentencing Loflin, based on facts found only by the court,

affects his substantial rights and warrants correction.2

           Accordingly, we vacate Loflin’s sentence and remand for

resentencing consistent with this opinion.3      We dispense with oral


       2
      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 Loflin’s 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 Guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the] Guidelines
and take them into account when sentencing.” Booker, 543 U.S. at
264.   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. 2007), and then impose a sentence. Hughes, 401 F.3d
at 546. 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) (West Supp. 2007). Hughes, 401 F.3d at
546 & n.5. The sentence must be “within the statutorily prescribed

                                   4
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




range and . . . reasonable.”   Id. at 547.

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