                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4453



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


LEON S. WESTBERRY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (CR-02-1150)


Submitted:   January 18, 2006             Decided:   February 2, 2006


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


William W. Watkins, Sr., WILLLIAM W. WATKINS, P.A., Columbia, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Kevin F. McDonald, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Leon S. Westberry pled guilty to two counts of mail

fraud, in violation of 18 U.S.C. §§ 2, 1341.      At sentencing, the

district court determined by a preponderance of the evidence that

Westberry was responsible for $4.3 million in intended loss.

Though this monetary amount was neither admitted to by Westberry

nor found by a jury beyond a reasonable doubt, the district court

used it to determine Westberry’s offense level and sentenced him to

thirty-seven months’ imprisonment.

          As the government concedes, the district court’s fact-

finding resulted in a sentence higher than the maximum allowed

based only on the facts admitted by Westberry and the sentence thus

violates Westberry’s Sixth Amendment rights.    See United States v.

Booker, 125 S. Ct. 738 (2005); United States v. Evans, 416 F.3d 298

(4th Cir. 2005).1    Because the government cannot demonstrate that

the Sixth Amendment error did not affect Westberry’s substantial

rights, we vacate Westberry’s sentence and remand for resentencing.

See United States v. Rodriguez, ___ F.3d ___, 2006 WL 9602 (4th

Cir. Jan. 3, 2006).

          Although    the   Sentencing   Guidelines   are   no   longer

mandatory, a sentencing court must still “consult [the] Guidelines



     1
      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
Westberry’s sentencing.

                                - 2 -
and take them into account when sentencing.”     Booker, 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 the determination.        See 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) and

then impose a sentence.      Id.    If that sentence falls outside the

guideline range, the court should explain its reasons for the

departure as required by 18 U.S.C. § 3553(c)(2) (2000).       Id.   The

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

reasonable.”      Id. at 546-47.2

              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




       2
      Because we conclude that Westberry’s sentence must be vacated
and remanded, we decline to address Westberry’s claim that the
district court erred when calculating the loss amount.

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