                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 03-4418



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


JONATHAN CARNELL WILLIAMS,

                                                Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
99-346-PJM)


Submitted:   August 22, 2005                 Decided:   October 6, 2005


Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished per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


Idus J. Daniel, Jr., LAW OFFICE OF IDUS DANIEL, Washington, D.C.,
for Appellant. Thomas M. DiBiagio, United States Attorney, Bryan
E. Foreman, Assistant United States Attorney, Greenbelt, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jonathan Carnell Williams was charged with one count of

possession with intent to distribute five grams or more of cocaine

base, commonly known as crack, on July 14, 1999 (Count One);

possession with intent to distribute 50 grams or more of cocaine

base on July 15, 1999 (Count Two), possession with intent to

distribute marijuana (Count Three), knowing possession of a firearm

with an altered or obliterated serial number (Count Four), and

possession of a firearm by a convicted felon (Count Five).                 At the

close of the Government’s evidence, the district court granted

Williams’    motion    to   dismiss   for     lack   of   evidence   the   charge

regarding a firearm with an altered or obliterated serial number

(Count Four).         The court also reduced Count Three to simple

possession of marijuana. The jury acquitted Williams of all counts

with the exception of Count One.         On appeal, Williams contends the

following:     (1) his sentence, based in part on facts from the

dismissed and acquitted counts, violates the rules announced in

United States v. Booker, 125 S. Ct. 738 (2005), and Blakely v.

Washington, 542 U.S. 296 (2004); (2) 21 U.S.C. § 841 (2000) is

unconstitutional as a result of Apprendi v. New Jersey, 530 U.S.

466 (2000); (3) Section 841 is void for vagueness; (4) the evidence

was insufficient to establish that the seized contraband was crack

cocaine; and (5) the district court abused its discretion admitting

the contraband as evidence because a link in the chain of custody


                                      - 2 -
was not established.         While we affirm the conviction, we find the

sentence violates the rules announced in Booker and Blakely.

            The evidence at trial established that law enforcement

authorities arrested Williams as he was about to transact a drug

sale.     Seized from his person were two small baggies containing

cocaine base. Williams contends § 841 is unconstitutional in light

of Apprendi because the penalty provision cannot be severed from

the rest of the statute.             Because Williams did not raise this

challenge in the district court, this claim is reviewed for plain

error.     United States v. Olano, 507 U.S. 725, 732-37 (1993)

(unpreserved error may be corrected only if error occurred, that

was plain, and that affects substantial rights, and failure to

correct error would seriously affect the fairness, integrity, or

public    reputation    of     judicial     proceedings);          United         States   v.

McAllister, 272 F.3d 228, 230-31 (4th Cir. 2001).

            Williams relies on United States v. Buckland, 259 F.3d

1157 (9th Cir. 2001) (“Buckland I”) for the proposition that the

penalty    provisions     of    §    841    are    facially           unconstitutional.

However, this case was overruled in United States v. Buckland, 289

F.3d 558 (9th Cir. 2002).             We find the claim is without merit

because    this   court      has     held   that        §    841      is    not    facially

unconstitutional.       McAllister, 272 F.3d at 232-33.                     In addition,

this    court   specifically        rejected      the       holding    in    Buckland      I.

Recently, this court again rejected this argument, noting the issue


                                       - 3 -
is foreclosed by McAllister.          United States v. Collins, 415 F.3d

304, __, 2005 WL 1621100, *6 (4th Cir. 2005).

             Williams also contends § 841 is void for vagueness

because the statute does not define cocaine base.                   In addition,

while Williams notes this court held cocaine base includes crack,

that   was   under   a    lesser   fair   notice   standard,       citing   United

States v. Pinto, 905 F.2d 47 (4th Cir. 1990).               Because this issue

was not raised below, review is for plain error.                  Olano, 507 U.S.

at 732-37.

             In Pinto, this court held the term cocaine base includes

crack cocaine. This court further noted that the fact that cocaine

base was undefined in the statute was of no matter because it

applied only to what were then the sentencing provisions of § 841.

“As such, the notice required to satisfy due process is less

rigorous than that applied to substantive provisions.”                   Id., 905

F.2d at 50. In order for Williams to show plain error, he must

establish the error is clear and obvious.               Olano, 507 U.S. at 734,

United States v. White, 405 F.3d 208, 217 (4th Cir. 2005).                  We note

Pinto does not stand for the proposition that under a heightened

fair notice standard, cocaine base does not necessarily include

crack.   Because the holding in Pinto remains valid, Williams has

not    established       the   alleged    error    is     clear    and   obvious.

Accordingly, he cannot establish plain error.




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             Williams contends there was insufficient evidence to

support the finding that the substance seized from his person and

his home was crack cocaine. Although Williams moved for a judgment

of acquittal on Count One, he moved only on the basis that the

chain of custody with respect to the seized contraband was not

established.      Thus, review is for plain error.               We find Williams

failed to establish plain error.           In Pinto, this court held that

cocaine base includes crack cocaine.             Id., 905 F.2d at 50.         There

is   no   doubt   that   the   chemist’s    testimony       at    trial   provided

sufficient    evidence    to    support    the    finding    that     the    seized

substances contained cocaine base. It is not clear or obvious that

the evidence was insufficient to establish the presence of crack

cocaine.

             Williams also contends the crack seized from his person

on July 14, 1999, was improperly admitted into evidence because

there was a missing link with respect to the chain of custody.

             Under Fed. R. Evid. 901, the admission of an exhibit must

be preceded by “evidence sufficient to support a finding that the

matter in question is what its proponent claims.”                 This showing is

satisfied    by   “sufficient    proof    that    the   evidence     is     what   it

purports to be and has not been altered in any material respect,”

and is not intended as an “iron-clad” rule that requires exclusion

of real evidence based on a missing link in its custody.                     United

States v. Ricco, 52 F.3d 58, 61-62 (4th Cir. 1995).                  The ultimate


                                    - 5 -
question focuses on “whether the authentication testimony was

sufficiently complete so as to convince the court that it is

improbable that the original item had been exchanged with another

or otherwise tampered with.” United States v. Howard-Arias, 679

F.2d 363, 366 (4th Cir. 1982).         Resolution of a chain of custody

question rests with the sound discretion of the trial judge.

Ricco, 52 F.3d at 61.        In the instant case, we find the court did

not abuse its discretion admitting the seized contraband.                 See,

e.g., Howard-Arias, 679 F.2d at 365-66 (all members of the chain of

custody testified except for a DEA agent who transferred the

contraband from one location to another).

            Finally,      Williams   attacks   his   sentence   because   the

enhancements were based on evidence that supported the charges of

which   Williams    was    acquitted   or    which   were   dismissed.     At

sentencing, Williams was found responsible for at least 50 grams

but less than 150 grams of crack cocaine and assigned a base

offense level of 32.       His base offense level was increased by 2 for

possession of a weapon.        The facts supporting these enhancements

were not found by the jury beyond a reasonable doubt or admitted by

Williams.   Williams argued unsuccessfully that under Apprendi, the

offense level should not be enhanced as a result of the evidence

supporting the acquitted charges. Because Williams was in criminal

history category VI, his sentencing range was 262 to 327 months’

imprisonment.      He was sentenced to 262 months’ imprisonment.


                                     - 6 -
            In United States v. Booker, 125 S. Ct. 738 (2005), 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.                Id. at 746, 750

(Stevens, J., opinion of the Court).                The Court remedied the

constitutional violation by severing two statutory provisions, 18

U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing

courts to impose a sentence within the applicable guideline range),

and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth

appellate standards of review for guideline issues), thereby making

the guidelines advisory.         United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005) (citing Booker, 125 S. Ct. at 756-67 (Breyer,

J., opinion of the Court)).

             After   Booker,    courts    must   calculate   the   appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a),

and impose a sentence.         If a court imposes a sentence outside the

guideline range, the district court must state its reasons for

doing so.    Hughes, 401 F.3d at 546.        This remedial scheme applies

to any sentence imposed under the mandatory guidelines, regardless

of whether the sentence violates the Sixth Amendment.              Id. at 547

(citing Booker, 125 S. Ct. at 769 (Breyer, J., opinion of the

Court)).


                                     - 7 -
          Here, the district court sentenced Williams under the

mandatory federal sentencing guidelines and established a base

offense level based in part on acquitted conduct and not admitted

by Williams.    Without the enhancements for the drugs or firearms,

Williams’ offense level would have been 26.        See U.S. Sentencing

Guidelines Manual § 2D1.1(c)(7) (providing for base offense level

of thirty-two for offenses involving at least 5 grams but less than

20 grams of crack).      Assuming a criminal history category of VI,

Williams’ guideline range would have been 120 to 150 months’

imprisonment.    USSG Ch. 5, Pt. A (Sentencing Table).        Because the

guideline range is less than the 262-month sentence Williams

received, we find the sentence violates the Sixth Amendment.1        2



          In light of Booker, we vacate Williams’ sentence and

remand   the    case   for   resentencing.   Although   the   sentencing

guidelines are no longer mandatory, Booker makes clear that a

sentencing court must still       “consult [the] Guidelines and take


     1
      Williams’ claim regarding the calculation of his criminal
history category is without merit. In Almendarez-Torres v. United
States, 523 U.S. 224 (1998), the Supreme Court held that the
government need not allege in its indictment and need not prove
beyond reasonable doubt that a defendant had prior convictions for
a district court to use those convictions for purposes of enhancing
a sentence.    We have confirmed that Almendarez-Torres was not
overruled by Apprendi, and remains the law.       United States v.
Cheek, 415 F.3d 349,     , 2005 WL 1669398, *3 (4th Cir. 2005).
     2
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Williams’ sentencing.


                                  - 8 -
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.              See Hughes, 401 F.3d at 546

(applying Booker on plain error review). The court should consider

this sentencing range along with the other factors described in

§ 3553, 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 § 3553(c)(2).                 Id.     The sentence

must   be   “within   the   statutorily        prescribed      range   and   .   .    .

reasonable.”      Id. at 546-47.

            Accordingly, we affirm the conviction and vacate the

sentence    and   remand    to   the    district       court   for     resentencing

consistent with the rules announced in Booker and Hughes.                            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
                                                        AND REMANDED IN PART




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