                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4420



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DARYL W. SMITH, a/k/a D-Nice,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp, Jr.,
District Judge. (CR-03-39)


Submitted:   May 25, 2005                  Decided:   July 11, 2005


Before LUTTIG, KING, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Kevin T. Tipton, CLAGETT, GOREY, CASTEEL & TIPTON, P.L.L.C.,
Fairmont, West Virginia, for Appellant. Thomas E. Johnston, United
States Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Daryl W. Smith appeals his convictions and 360-month

sentence for possession with intent to distribute five or more

grams of cocaine base, conspiracy to distribute fifty or more grams

of cocaine base, and aiding and abetting the distribution of

cocaine base within 1000 feet of a playground.   Finding no error in

Smith convictions, we affirm the convictions. However, because the

district court’s imposition of sentence violated Smith’s Sixth

Amendment right to trial by jury, we vacate the sentence and remand

for further proceedings.

          Smith claims that the district court erred by denying his

motion for mistrial after one of the jurors made an inappropriate

comment during deliberations.   The decision of whether to grant a

motion for a mistrial is left to the broad discretion of the trial

court.   United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.

1997).   Under the circumstances of this case, we see no abuse of

discretion.   The jury promptly suspended deliberations when the

comments were made and referred the matter to the court.   The court

voir dired each juror individually and determined each was willing

to consider all of the evidence fairly and impartially.    Finally,

the court dismissed the offending juror before allowing the jury to




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return to deliberations.          Under these circumstances we find no

error.1

           Smith next claims the district court erred by refusing to

allow him to impeach a Government witness with a fourteen year old

bribery conviction.     Relevant prior convictions may be used for

impeachment purposes subject to certain limitations. Fed. R. Evid.

609(a).   These limitations preclude the use of a conviction more

than ten years old except where the probative value of such a

conviction substantially outweighs its prejudicial value.          Fed. R.

Evid. 609(b).     This case does not involve the sort of rare and

exceptional circumstances that would warrant use of the conviction

at issue for impeachment.     See United States v. Cavender, 578 F.2d

528, 531 (4th Cir. 1978).

           Smith also claims he was denied his Sixth Amendment right

to   confront   witnesses    by    the   district   court’s   ruling   that

effectively precluded him from impeaching Government witnesses with

memoranda of interviews completed by Government agents.                Smith

asserts the material falls within the scope of the Jencks Act, 18

U.S.C. § 3500 (2000).       This court has repeatedly held that such

memoranda fall outside the scope of         the Jencks Act unless adopted

by the witness.    See United States v. Roseboro, 87 F.3d 642, 645



     1
      To the extent Smith assigns error to the district court’s
decision to allow the jury to continue deliberations with eleven
jurors, we find no error. See United States v. Fisher, 912 F.2d
728, 733 (4th Cir. 1990).

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(4th Cir. 1996); United States v. Hinton, 719 F.2d 711, 722 (4th

Cir.       1983).     Smith       concedes     no    such    adoption    was     made.

Furthermore,        the   court    did   not   err   in     precluding   Smith   from

providing the witnesses with copies of the memoranda in order that

they could adopt or reject the memoranda as their own statements.

Accordingly, we find no error.

              Finally,      Smith    claims      that     the    district      court’s

imposition of sentence violates his Sixth Amendment right to trial

by jury. Because we conclude that the district court’s application

of the Sentencing Guidelines resulted in an increase to Smith’s

Guidelines range on the basis of facts not found by the jury beyond

a reasonable doubt, we agree.2            See United States v. Booker, 125 S.

Ct. 738 (2005); United States v. Hughes, 401 F.3d 540 (4th Cir.

2005).       Accordingly, we vacate Smith’s sentence and remand for

further proceedings consistent with Booker and Hughes.3                     We affirm


       2
      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 Smith’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 was settled and clearly contrary
to the law at the time of appeal”).
       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

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Smith’s convictions.         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




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.

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