                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4770



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


LOUIS N. NOMAR,

                                            Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-5289)


Submitted:   September 26, 2005        Decided:     November 30, 2005


Before WIDENER, WILKINSON, and GREGORY, Circuit Judges.


Vacated and remanded for resentencing by unpublished per curiam
opinion.


Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, L. Anna Forbes, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Louis N. Nomar pled guilty to conspiracy to commit wire

fraud via the internet, 18 U.S.C. § 371 (2000), and escape, 18

U.S.C. § 751(a) (2000), and was sentenced to a term of seventy-

seven months imprisonment.           We affirmed his sentence.        United

States v. Nomar, No. 03-4770, 2004 WL 794520 (4th Cir. Apr. 15,

2004)    (unpublished).       The   Supreme   Court   subsequently   granted

certiorari, vacated this court’s judgment in light of United

States v. Booker, 125 S. Ct. 738 (2005), and remanded Nomar’s case

to this court for further proceedings.           For the reasons explained

below,    we   vacate   his   sentence     and   remand   for   resentencing

consistent with Booker.

            Nomar was sentenced before Booker and its predecessor,

Blakely v. Washington, 542 U.S. 296 (2004), were decided, and he

did not raise objections in the district court based on the

mandatory nature of the sentencing guidelines or the district

court’s application of the guidelines based on facts he did not

admit.    Therefore, we review his sentence for plain error.          United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).              Nomar had

posed as a doctor and written prescriptions for online customers,

some of whom were addicts.          The district court calculated Nomar’s

guideline range under the 2003 version of the U.S. Sentencing

Guidelines Manual as follows:

Count One (conspiracy to commit wire fraud)
Base offense level       6    USSG § 2F1.1(a)

                                      - 2 -
                           + 7      loss of $175,000, (b)(1)(H)
                           + 2      more than minimal planning,
                                    (b)(2)(A)
                           + 2      use of mass marketing, (b)(3)
                           + 2      risk of serious bodily injury,
                                    (b)(7)(A)
                           + 2      abuse of position of trust, USSG
                                    § 3B1.3
                           + 2      organizer/leader role, USSG
                                    § 3B1.1(c)
                           + 2      o b s t r u c t i o n o f j u s t i ce (esc ape
                                    during prosecution), USSG § 3C1.1
Adjusted offense level     25

Count Two (escape)
Base offense level         13       USSG § 2P1.1(a)(1)
Adjusted offense level     13

Multiple count adjustment           None, USSG §§ 3D1.3, 3D1.4

Combined adjusted offense level:         25
Criminal history category: III
Guideline range: 70-87 months

            At   the   sentencing    hearing,     Nomar     objected     to   the

enhancement for risk of serious bodily injury. He either admitted,

failed to object to, or withdrew his objections to the remaining

sentence enhancements.      In his supplemental brief, filed at this

court’s direction after his case was remanded by the Supreme Court,

Nomar argues that his sentence violated the Sixth Amendment because

the district court determined certain facts that increased his

sentence.

            If Nomar’s offense level is calculated using all the

enhancements except the one he specifically contested at sentencing

(risk of serious bodily injury), the combined adjusted offense

level would be 23 and his guideline range would be 57-71 months.


                                    - 3 -
Nomar concedes in his supplemental brief that the court correctly

applied an increase of 7 levels for the amount of loss, a 2-level

increase for the use of mass marketing, and a 2-level adjustment

for obstruction of justice.        Using this calculation, the offense

level would be 17 and the guideline range would be 30-37 months.

Nomar’s sentence of seventy-seven months imprisonment exceeds the

maximum permitted under either calculation.               We conclude that

Nomar’s seventy-seven-month sentence was imposed in violation of

the Sixth Amendment and meets the standard for plain error that

must be noticed set out in Hughes.*

           We     therefore   vacate     the   sentence   and   remand   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.       Hughes, 401 F.3d at 546.      The court should

consider   this    sentencing    range   along   with   the   other   factors

described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and


     *
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Nomar’s sentencing. Hughes,
401 F.3d at 545 n.4. 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”).

                                   - 4 -
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.A. § 3553(c)(2).       Id.   The

sentence must be “within the statutorily prescribed range and . . .

reasonable.” Id. 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
                                                  FOR RESENTENCING




                                - 5 -
