                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4086



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LARRY DONNELL OWENS,

                                             Defendant - Appellant.



Appeal from the United States District      Court for the Middle
District of North Carolina, at Durham.       James A. Beaty, Jr.,
District Judge. (CR-04-276)


Submitted:   July 27, 2005                 Decided:   August 1, 2005


Before KING, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Louis C. Allen, III, Federal Public Defender, Erick D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant.   Anna Mills Wagoner, United States Attorney, Michael
Augustus DeFranco, 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Unpublished opinions are not binding precedent in this circuit.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:

           Larry Donnell Owens pled guilty to possession of a

firearm   by    a   prohibited    person      in    violation    of   18    U.S.C.

§§   922(g)(1) and 924(a)(2) (2000).          The district court sentenced

Owens   under   the   federal    sentencing        guidelines    to   108   months

incarceration and stated an alternative sentence of 50 months

pursuant to our directive in United States v. Hammoud, 378 F.3d 426

(4th Cir.) (order), opinion issued by 381 F.3d 316 (4th Cir. 2004)

(en banc), vacated, 125 S. Ct. 1051 (2005).                Owens now appeals,

arguing that his sentence was imposed in violation of his Sixth

Amendment rights, as expressed in United States v. Booker, 125 S.

Ct. 738 (2005).       For the reasons that follow, we affirm Owens’

conviction, but vacate his sentence and remand for re-sentencing.

           Owens      argues     on    appeal       that   his    sentence     is

unconstitutional because it was enhanced based on the district

court’s findings that he possessed the firearm in connection with

another felony offense and that he possessed a specific quantity of

a controlled substance.        These findings resulted in an enhancement

of Owens’ sentencing range under the guidelines as mandatory from

46 to 57 months to 100 to 120 months.           In Booker, the Supreme Court

held that the federal sentencing guidelines’ mandatory scheme--

which provided for sentencing enhancements based on facts found by

the court--violated the Sixth Amendment.             Id. at 746 (Stevens, J.,

opinion of the Court).           The Court remedied the constitutional


                                      - 2 -
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).   In light of the ruling in Booker, we find

that the district court erred in imposing a sentence under the

federal sentencing guidelines as they existed prior to Booker.1

Therefore, although we affirm Owens’ conviction, we vacate his

sentence and remand for proceedings consistent with Booker.2     See

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (citing

Booker, 125 S. Ct. at 764-65, 767 (Breyer, J., opinion of the

Court)).   We dispense with   oral   argument   because the facts and




     1
      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 [Owens’] 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”).
     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. § 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.
§ 3553(c)(2). Id. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. at 547.

                               - 3 -
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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