                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4427



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CLAYTON THOMAS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. Glen M. Williams, Senior
District Judge. (CR-03-10109)


Submitted:   March 13, 2006                 Decided:   April 11, 2006


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Daniel R. Bieger, COPELAND & BIEGER, P.C., Abingdon, Virginia, for
Appellant.   John L. Brownlee, United States Attorney, R. Lucas
Hobbs, Assistant United States Attorney, Abingdon, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Clayton Thomas was indicted for conspiring to manufacture

more than fifty grams of methamphetamine, within 1000 feet of a

school, in violation of 21 U.S.C. § 846 (2000) (Count One);

knowingly manufacturing more than fifty grams of methamphetamine,

within 1000 feet of a school, in violation of 21 U.S.C. § 841(a)(1)

(2000) (Count Two); and knowingly and intentionally possessing

pseudoephedrine with the intent to manufacture methamphetamine, 21

U.S.C. § 841(c)(1) (2000) (Count Three).

          Following a jury trial, the jury returned a special

verdict form finding Thomas guilty of three counts:

     1.   Conspiracy to manufacture any amount of a substance
          containing methamphetamine anywhere;
     2.   Manufacture of any amount of methamphetamine
          anywhere; and
     3.   Possession    of  an   unspecified    quantity   of
          pseudoephedrine with the intent to manufacture
          amphetamines.

Significantly,   the   jury   acquitted   Thomas   of   conspiracy   to

manufacture 50 grams of methamphetamine within 1000 feet of a

school, and manufacturing 50 grams of methamphetamine within 1000

feet of a school; the first two counts of conviction listed above

were lesser included offenses of the acquitted charges. On appeal,

Thomas does not challenge his conviction but contends that his

sentence violates United States v. Booker, 543 U.S. 220 (2005).

          The presentence report (“PSR”) attributed a total of

898.56 grams of pseudoephedrine and 216 grams of methamphetamine to


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Thomas.1     Based on this quantity of drugs, the probation officer

recommended a base offense level of thirty-four pursuant to U.S.

Sentencing Guidelines Manual § 2D1.1(c)(3) (2003).                   Further, the

PSR   recommended     that    Thomas      receive   a   two-level    enhancement,

pursuant to USSG § 3C1.1, for obstruction of justice.

             Based upon a total offense level of thirty-six and a

criminal history category of I, the PSR recommended a sentencing

guideline range of 188 to 235 months.                    At sentencing, Thomas

objected to the calculation of his guideline range.                  Specifically,

Thomas     claimed   that    the   drug    quantity     attributed    to   him   was

excessive because the jury acquitted Thomas of the charges of

conspiring and manufacturing over fifty grams of methamphetamine.

The district court rejected the drug quantity objection, eliminated

the two-level enhancement for obstruction of justice, and otherwise

adopted the PSR, which included no other enhancements or adjustment

to the offense level.        As a result, Thomas’ offense level was set

at thirty-four and his criminal history category was I, yielding a

guideline range of 151 to 188 months. The district court sentenced

Thomas to 151 months, at the low end of the guideline range.

             Thomas was sentenced prior to the decisions in Blakely v.

Washington, 542 U.S. 296 (2004), and Booker, and he did not raise

in the district court a challenge to the mandatory application of



      1
      These amounts were converted to 9417.6 kilograms of
marijuana. See USSG § 2D1.1, cmt. (n.10) (Drug Equivalency Table).

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the guidelines or a Sixth Amendment claim regarding the guidelines

calculation.        Therefore, this court reviews his sentence for plain

error.     See United States v. Olano, 507 U.S. 725, 732-34 (1993);

United States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005).                In

his appeal he asserts error in the district court’s enhancement of

his base offense level, based on judicial fact-finding made by a

preponderance of the evidence, rather than by a jury beyond a

reasonable doubt, and further asserts error in the mandatory

application of the federal sentencing guidelines.               The Government

acknowledges that the case should be remanded for resentencing.

              Because the district court enhanced Thomas’ sentence

based on drug quantity not found by the jury beyond a reasonable

doubt    or   admitted      by   Thomas,    his   151-month   sentence   imposed

pursuant to a mandatory application of the guidelines meets the

standard      for   plain    error   that    must   be   recognized   under   the

reasoning set forth in Hughes.2             See United States v. Collins, 401

F.3d 212, 219-22 (4th Cir. 2005).

              Accordingly, we remand for resentencing consistent with

Booker.3      We deny as moot Thomas’ motion to expedite, as the case


     2
      Just as we noted in Hughes, 401 F.3d at 545 n.4, we “offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Thomas’ sentencing.
     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.” 543
U.S. at 224. On remand, the district court should first determine
the appropriate sentencing range under the guidelines, making all

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was decided as quickly as possible given the court’s caseload.   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




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), 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). The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47; see also United States v. Green, 436 F.3d 449 (4th
Cir. 2006). As the Government notes in its brief, the district
court may sentence Thomas based on facts not found by the jury
beyond a reasonable doubt, so long as the court applies the
guidelines in an advisory rather than a mandatory fashion.

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