                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4657



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


REGINALD LARUE SPIVEY, a/k/a Buddy,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
District Judge. (CR-03-23)


Submitted:   February 13, 2006             Decided:   March 8, 2006


Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


William Lee Davis, III, Lumberton, North Carolina, for Appellant.
Frank DeArmon Whitney, United States Attorney, Anne Margaret Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Reginald Larue Spivey appeals his sentence of 410 months

of imprisonment imposed after a jury trial and conviction of one

count of conspiracy to distribute and possess with intent to

distribute at least 50 grams of cocaine base and at least five

kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count 1);

one count of distribution of cocaine, in violation of 21 U.S.C.

§ 841(a)(1) (Count 2); one count of possession with intent to

distribute at least 50 grams of cocaine base and 500 grams of

cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 3);           and one

count    of    possession   of   firearms   in   furtherance   of   a   drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(2).            The

jury also found a forfeiture of $1,000,000 in the superseding bill

of indictment.      Counsel has filed an Anders1 brief asserting that

there are no meritorious issues for appeal. Spivey was notified of

his right to file a pro se supplemental brief, and has done so,

challenging the district court’s denial of his motion to suppress,

and challenging his sentence.        Because we conclude that Spivey’s

sentence was based upon facts not charged in the indictment or

admitted to by Spivey, we vacate his sentence and remand.2


     1
        See Anders v. California, 386 U.S. 738 (1967).
     2
      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 Spivey’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

                                    - 2 -
              In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court applied the rationale of Blakely v. Washington, 542

U.S. 296 (2004), to the federal sentencing guidelines and held that

the    mandatory     guidelines    scheme        that   provided    for     sentence

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment.               Booker, 125 S. Ct.

at 746-48, 755-56 (Stevens, J., opinion of the Court).                     The Court

remedied the constitutional violation by severing and excising the

statutory provisions that mandate sentencing and appellate review

under the guidelines, thus making the guidelines advisory.                    Id. at

756-57 (Breyer, J., opinion of the Court). Subsequently, in United

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

held   that    a   sentence   that   was     imposed     under     the    pre-Booker

mandatory sentencing scheme and was enhanced based on facts found

by the court, not by a jury (or, in a guilty plea case, not

admitted to by the defendant), constitutes plain error that affects

the defendant’s substantial rights and warrants reversal under

Booker   when      the   record   does    not    disclose   what    discretionary

sentence the district court would have imposed under an advisory

guidelines scheme.          Hughes, 401 F.3d at 546-56.                  We directed

sentencing courts to calculate the appropriate guidelines range,

consider that range in conjunction with other relevant factors



was settled and clearly contrary to the law at the time of
appeal”).

                                         - 3 -
under the guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2004), and impose a sentence.       If the district court imposes a

sentence outside the guidelines range, the court should state its

reasons for doing so.    Id. at 546.

          Spivey timely objected to his sentence, citing Blakely.

Our review of the record leads us to conclude that Spivey’s base

offense level was not properly determined because it was based on

drug quantities not alleged in the indictment, found by the jury,

or admitted to by Spivey. In addition, Spivey received a two-level

enhancement of his offense level for being a leader or organizer in

the conspiracy, pursuant to U.S. Sentencing Guidelines Manual

§ 3A1.2(b)(1) (2003). We conclude also that the imposition of this

enhancement was error under the Sixth Amendment as applied in

Booker, because the facts supporting this enhancement were not

alleged in the indictment, found beyond a reasonable doubt, or

admitted by Spivey, and because, absent this enhancement and based

upon the additional drug quantities upon which Spivey was sentenced

beyond those set forth in the indictment, Spivey’s guidelines range

would have been below the range in which Spivey was sentenced.

          We   have   further   reviewed   Spivey’s   challenge   to   the

district court’s denial of his motion to suppress.         We pay great

deference to the district court’s findings of probable cause in

relation to warrants. Illinois v. Gates, 462 U.S. 213, 236 (1983).

While we review the legal determinations underlying the district


                                 - 4 -
court’s denial of a motion to suppress de novo, United States v.

Hamlin, 319 F.3d 666, 671 (4th Cir. 2003), we review for clear

error    the     factual   findings   underlying   the   district   court’s

decision, and conduct such review of the facts in the light most

favorable to the Government, giving “due weight to inferences drawn

from those facts by resident judges and local law enforcement

officers.”       Ornelas v. United States, 517 U.S. 690, 699 (1996);

Hamlin, 319 F.3d at 671.       Under this standard, we find no merit to

Spivey’s challenge to the district court’s denial of his motion to

suppress.

               As required by Anders, we have examined the entire record

and find no other meritorious issues for appeal.          Accordingly, we

affirm Spivey’s conviction, vacate his sentence, and remand for

resentencing in accordance with Booker and Hughes.3                 We deny

Spivey’s motion for general relief, and dispense with oral argument

because the facts and legal contentions are adequately presented in




     3
      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. 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)
(2000), 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) (2000).
Id. The sentence must be “within the statutorily prescribed range
. . . and reasonable.” Id. at 546-47.

                                      - 5 -
the materials before the court and argument would not aid the

decisional process.



                                                AFFIRMED IN PART,
                                    VACATED IN PART, AND REMANDED




                            - 6 -
