                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4167



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JAMES BUTLER,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (CR-03-657)


Submitted:   May 31, 2006                  Decided:   June 26, 2006


Before MICHAEL, KING, and GREGORY, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, William E. Day, II, Assistant United States Attorney,
Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James Butler pled guilty, pursuant to a written plea

agreement, to fraudulent use of unauthorized access devices. Prior

to the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), the district court sentenced Butler to thirty-four

months’ imprisonment.    On appeal, Butler asserts that his sentence

violated the Sixth Amendment.      We agree, and we therefore vacate

Butler’s sentence and remand for resentencing.

            Because Butler did not raise an objection below based on

the Sixth Amendment, we review for plain error.         United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005).          The district court

increased   Butler’s    offense   level   for   relocating     to   another

jurisdiction   to   evade   law   enforcement,    see   U.S.    Sentencing

Guidelines Manual § 2B1.1(b)(8) (2002), and for trafficking or

transferring unauthorized access devices or unlawfully producing or

possessing identification, see USSG § 2B1.1(b)(9). Butler did not

admit to the facts supporting these enhancements.1        Without these

judicially-determined sentencing enhancements, Butler’s offense

level would have been 10.2        Because he was in criminal history


     1
      Butler objected to the § 2B1.1(b)(8) enhancement. Although
he did not object to the § 2B1.1(b)(9) enhancement, a defendant’s
failure to object to the facts in his PSR does not constitute a
Booker admission. See United States v. Milam, 443 F.3d 382 (4th
Cir. 2006).
     2
      While Butler did receive a reduction for acceptance of
responsibility, when determining if Booker error occurred, we look
to the guideline range based on admitted conduct or facts found by

                                  - 2 -
category VI, his guideline range would have been twenty-four to

thirty months in prison.      His thirty-four-month sentence imposed

under the mandatory guidelines scheme was therefore longer than the

sentence the district court could have imposed without violating

the Sixth Amendment.        We therefore conclude that plain error

affecting Butler’s substantial rights occurred in his sentencing.3

Hughes, 401 F.3d at 550-51.

            Accordingly, we vacate Butler’s sentence and remand for

resentencing.       Although the Sentencing Guidelines are no longer

mandatory, Booker makes it clear that a sentencing court still must

“consult    [the]    Guidelines   and   take   them   into   account   when

sentencing.”    Booker, 543 U.S. at 244-45.      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. 2005), and then impose a

sentence.   If that sentence falls outside the Guideline range, the

court should explain the reasons for the departure as required by

18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005).            Hughes, 401


a  jury,   and   disregard any   reduction   for  acceptance   of
responsibility. See United States v. Evans, 416 F.3d 298, 300 n.4
(4th Cir. 2005).
     3
      As we noted in Hughes, “[w]e of course offer no criticism of
the district court judge who followed the law and procedure in
effect at the time” of Butler’s sentencing. 401 F.3d at 545 n.4.

                                   - 3 -
F.3d   at   546.   The   sentence    must   be   “within   the   statutorily

prescribed range and . . . reasonable.”          Id.

            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




                                    - 4 -
