                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4080



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


QUENTIN ORLANDO RUTLAND,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-02-31)


Submitted:   May 20, 2005                   Decided:   June 3, 2005


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Andrew B. Banzhoff, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, D. Scott Broyles,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Quentin Orlando Rutland was convicted after a jury trial

of one count of conspiracy to possess with intent to distribute

fifty grams or more of cocaine base and one count of possession

with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),

841(b), 846 (2000).        He was sentenced to 235 months in prison and

five years of supervised release.            Rutland appeals, claiming his

sentence was imposed in violation of United States v. Booker, 125

S.   Ct.   738   (2005).     We   vacate    his   sentence   and   remand   for

resentencing.

            Because Rutland raised his Booker challenge for the first

time on appeal, we review for plain error.            See United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005).           As set forth in United

States v. Olano, 507 U.S. 725, 732 (1993), plain error is present

if: (1) there was error; (2) it was plain; and (3) it affected the

defendant’s substantial rights.            If these conditions are met, we

may then exercise our discretion to notice the error, but only if

it “seriously affects the fairness, integrity or public reputation

of judicial proceedings.”           Id. (internal quotation marks and

alterations omitted). We find plain error under Olano in regard to

Rutland’s sentence.

            First, the prison term imposed on Rutland constituted

error under Booker.         See 125 S. Ct. at 755-56 (holding Sixth

Amendment contravened when sentencing court, acting pursuant to


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Guidelines, imposes sentence greater than maximum authorized by

facts found by jury alone).        Under the then-mandatory Guidelines

regime, the jury verdict finding Rutland guilty of conspiracy to

distribute fifty grams or more of cocaine base supported an offense

level of 32, which together with his category III criminal history,

resulted   in   a   sentencing   range   of   151-188   months   in   prison.

However, the court’s findings that Rutland was responsible for 240

grams of cocaine base and that he obstructed justice, increased the

offense level to 36, yielding a sentencing range of 235-298 months.

Pursuant   to   Booker,   the    court   erred   in   relying    on   its   own

fact-finding to impose a sentence of more than 188 months.*                 See

Hughes, 401 F.3d at 547 (recognizing that imposition of a sentence

“in part based on facts found by the judge . . . constituted

error”).

           Second, although Rutland’s Sixth Amendment contention was

foreclosed by our precedent at the time of his sentencing, Booker

has since “abrogated our previously settled law,” rendering the

error plain.        Hughes, 401 F.3d at 548.          Third, the error was

prejudicial, in that Rutland’s 235-month sentence was greater than




     *
      Just 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 Rutland’s 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”).

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the 188-month maximum authorized by the facts found by the jury

alone.     Id. at 548-49.

      Finally, to affirm Rutland’s sentence despite the error would

seriously affect the fairness, integrity, or public reputation of

these judicial proceedings.       In the wake of Booker, the Guidelines

are   to   be   treated   as   advisory   (rather   than   mandatory),   and

sentences that fall within the statutorily prescribed range are

reviewable only for reasonableness. Id. at 546 (citing Booker, 125

S. Ct. at 765-68).        The record before us does not indicate what

sentence the court would have imposed on Rutland had it exercised

discretion under 18 U.S.C. § 3553(a) and treated the Guidelines as

merely advisory. Although it is possible that Rutland will receive

the same sentence on remand, “[t]his possibility is not enough to

dissuade us from noticing the error.”        Hughes, 401 F.3d at 556.     We

therefore vacate Rutland’s sentence and remand for resentencing

consistent with Booker and its progeny.             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




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