                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4064



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RICHARD MONTAGUE POWELL,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-04-434)


Submitted:   June 24, 2005                 Decided:   July 19, 2005


Before WILLIAMS, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Grover C. Seaton IV, Moncks Corner, South Carolina, for Appellant.
Jonathan S. Gasser, Acting United States Attorney, Miller W.
Shealy, Jr., Assistant United States Attorney, Charleston, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Richard       Montague     Powell     pled    guilty    to   copyright

infringement in violation of 17 U.S.C. § 506(a)(1) (2000), 18

U.S.C. § 2319(b)(1) (2000).             Powell was sentenced to 30 months of

imprisonment, followed by two years of supervised release.                          He

appeals his sentence.

             Powell first argues on appeal that the district court

erred in applying the fraud enhancement to his base offense level,

pursuant     to    U.S.      Sentencing       Guidelines   Manual    §§   2B5.3(b),

2B1.1(b)(1)(G) (2003), because the copyright holder suffered no

pecuniary     harm     and    thus     there    was   no   loss.     However,      the

determination of whether the enhancement from the fraud guideline

applies      to    enhance     the     base     offense    level    for   copyright

infringement is based on retail value of the infringement, not the

copyright holder’s pecuniary loss.                    USSG § 2B5.3(b), comment.

(n.2(B)) (“the infringement amount is the retail value of the

infringing item, multiplied by the number of items”).                       Because

Powell pled guilty to the indictment, which included the averment

that   the    retail      value   of   the     infringement   was   in    excess    of

$250,000, and further agreed at sentencing that the value of the

infringement was greater than $200,000, we find the district court

did    not   err     in   applying      the     enhancement   pursuant     to   USSG

§ 2B1.1(b)(1)(G).




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            Powell also argues the district court erred in applying

the federal sentencing guidelines as mandatory in violation of

United States v. Booker, 125 S. Ct. 738 (2005).            Because      Powell

did not object to his sentence in the district court on this

ground, our review is for plain error.              See United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005).           To demonstrate plain

error, Powell must establish that error occurred, that it was

plain, and that it affected his substantial rights. Id. at 547-48.

If   a   defendant     establishes    these   requirements,     the    court’s

“discretion is appropriately exercised only when failure to do so

would    result   in   a   miscarriage   of   justice,   such   as    when   the

defendant is actually innocent or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Id. at 555 (internal quotation marks and citation omitted).

            In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

125 S. Ct. at 746, 750.          The Court remedied the constitutional

violation    by   severing    two    statutory   provisions,    18    U.S.C.A.

§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2005), thereby making the

guidelines advisory.        Hughes, 401 F.3d at 546.

            In United States v. White, 405 F.3d 208 (4th Cir. 2005),

we recognized that a sentence that does not violate the Sixth


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Amendment may involve cognizable plain error when it appears the

district court would have imposed a lesser sentence if it had

treated the guidelines as advisory.               Here, although the court’s

comments at sentencing are not conclusive, they can be interpreted

to permit the possibility that a lower sentence might have been

imposed on Powell had the court not been under the now-erroneous

understanding that application of the guidelines was mandatory.*

Out of deference to the district court, then, we vacate Powell’s

sentence and remand the case for resentencing consistent with

Booker.

            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 United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005) (applying Booker on plain error review).                     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



     *
      Just 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 Powell’s sentencing.

                                      - 4 -
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.

          Accordingly,   we   affirm    the   conviction,   but   vacate

Powell’s sentence and remand for resentencing in accordance with

Booker. 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.



                                                    AFFIRMED IN PART,
                                        VACATED IN PART, AND REMANDED




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