                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4083



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


WARREN EDWIN MOORE,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (CR-02-1280)


Submitted:   January 31, 2007          Decided:     February 15, 2007


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


Vacated and remanded by unpublished per curiam opinion.


Christopher J. Moran, Columbia, South Carolina, for Appellant. Rose
Mary Parham, Assistant United States Attorney, Florence, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Warren Edwin Moore appeals the sentence imposed after he

pleaded guilty to possession with intent to distribute a quantity

of cocaine, in violation of 18 U.S.C. § 841(a)(1), (b) (2000).

Moore    argues   on    appeal   that    his    sentence   violates    the    Sixth

Amendment right to a jury trial and should be vacated because the

district court’s determination of drug quantity and possession of

a firearm resulted in a sentence that violated his substantial

rights.

            In United States v. Booker, 543 U.S. 220 (2005), the

Supreme Court held that Blakely v. Washington, 542 U.S. 296 (2004),

applies to the federal sentencing guidelines and that the mandatory

guidelines scheme, which provided for sentence enhancements based

on facts found by the court by a preponderance of the evidence,

violated the Sixth Amendment. See Booker, 543 U.S. at 226-27, 245.

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.    543 U.S. at 245.

            Moore      was   sentenced    before   Blakely     and   Booker    were

decided.    Because he made no objection to his sentence calculation

in the district court, the Sixth Amendment claims he raises on

appeal    under   Blakely     are   reviewed     for   plain   error.        United

States v. Olano, 507 U.S. 725, 732-37 (1993) (discussing standard);


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United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005)

(same).

          At   sentencing,    the     district    court    adopted   the

recommendation in the presentence report that Moore was responsible

for 77.55 grams of powder cocaine and 40.39 grams of crack cocaine,

resulting in an equivalence of 823.31 kilograms of marijuana.        The

superseding indictment does not indicate the quantity of cocaine

related to the count to which Moore pleaded guilty. The indictment

reads “a quantity of cocaine.”      (J.A. 10).   Nor did Moore admit to

a quantity at his plea hearing.     The weapon enhancement requires a

finding that the firearm was present during the drug offense and

that it was not clearly improbable that the firearm was connected

to the drug offense.   USSG § 2D1.1, comment. (n.3).      Therefore, the

district court’s adoption of the drug quantity used to establish

Moore’s base offense level under § 2D1.1 and the weapon enhancement

pursuant to § 2D1.1(b)(1) violates the Sixth Amendment under Booker

because each requires a factual finding that goes beyond that

admitted by Moore.

          Had the district court counted only the lowest level for

quantity of cocaine and eliminated the weapon enhancement, the

offense level for Count Two would be 12, see USSG § 2D1.1(c)(14)

(less than 25 grams of cocaine).       Moore had six criminal history

points, which placed him in category III.         His guidelines range

would be 15-21 months. Moore’s 108-month sentence thus exceeds the


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maximum sentence permitted based on facts established by the guilty

plea.

            The Government first argues that Moore has waived his

right to challenge his sentence because Moore acknowledged in his

plea agreement that his sentence would be imposed in conformity

with the Sentencing Guidelines.           Because this court has not held

that an understanding that a sentence would be imposed in a

particular manner constitutes a waiver of appeal rights, we reject

the Government’s argument.         See United States v. Hamdi, 432 F.3d

115, 122-24 (2d Cir. 2005) (an agreement to be sentenced under the

Guidelines    did    not   waive   the   right   to   appeal   the   sentence).

            The Government also argues that Moore has failed to

object to the district court’s findings and thus any error would be

harmless.    However, Moore’s failure to object to the presentence

report does not amount to an admission of the facts set out in the

report.     United States v. Milam, 443 F.3d 382, 387-88 (4th Cir.

2006).    Moore made no admissions.          He did not stipulate to facts

regarding drug quantity or firearm possession at the guilty plea

hearing, the indictment did not specify a quantity of cocaine, and

his withdrawal of his objections at sentencing did not constitute

an admission.       See id.

            Because Moore has established plain error, we vacate his

sentence and remand for resentencing consistent with Booker and

Hughes. We dispense with oral argument because the facts and legal


                                     - 4 -
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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