                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4979



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


TONY ANTHONY HEARNE,

                                              Defendant - Appellant.


         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-7741)


Submitted:   October 26, 2005             Decided:   December 7, 2005


Before WIDENER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Tony Anthony Hearne pled guilty to possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Count

One), and possession of counterfeit reserve notes, 18 U.S.C.A.

§ 472 (West Supp. 2005) (Count Three). The district court departed

upward from the applicable guideline range and imposed a sentence

of 205 months imprisonment for Count Three and a concurrent 120-

month sentence (the statutory maximum) for Count One.             We affirmed

the sentence and subsequently denied rehearing.             United States v.

Hearne, No. 03-4979 (4th Cir. June 29, 2004) (unpublished).                The

Supreme Court later granted Hearne’s petition for certiorari,

vacated this court’s judgment in light of United States v. Booker,

125   S.   Ct.   738   (2005),     and   remanded   the   case   for   further

proceedings.       Hearne has since filed pro se motions requesting a

remand for resentencing, appointment of new counsel, and leave to

file a pro se supplemental brief.

            Hearne’s sentence was imposed before the decisions in

Booker and its predecessor, Blakely v. Washington, 542 U.S. 296

(2004), and he did not raise objections to his sentence based on

the mandatory nature of the sentencing guidelines or the district

court’s application of sentencing enhancements based on facts not

admitted by him or found by the jury beyond a reasonable doubt.

Therefore,    we    review   his   sentence   for   plain   error.     United

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


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          Over Hearne’s objection, the district court applied an

enhanced base offense level of 26, U.S. Sentencing Guidelines

Manual § 2K2.1(a)(1) (2003), based on the court’s determination

that he possessed two firearms in addition to the Ruger revolver

charged in the indictment.      The court also applied a two-level

enhancement for possession of three firearms.        Based only on the

facts Hearne admitted, and before adjustment for acceptance of

responsibility, USSG § 3E1.1, see United States v. Evans, 416 F.3d

298, 300 n.4 (4th Cir. 2005), his offense level would have been 28.

Because he was in criminal history category VI, his guideline range

would have been 140-175 months.   The 205-month sentence imposed by

the district court therefore exceeded the maximum authorized based

on the facts Hearne admitted. The sentence thus meets the standard

for plain error that must be recognized set out in Hughes.*

          Accordingly,   we   vacate    the   sentence   imposed   by   the

district court and remand for resentencing.       We grant Hearne’s pro

se motions for remand and to file a pro se supplemental brief, but

deny his motion for new counsel.          We note that we previously

concluded that the district court did not clearly err in finding

that Hearne possessed a MAC-10 or similar semiautomatic weapon, 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 Hearne’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”).

                                - 3 -
our conclusion is not affected by Booker.               However, our prior

decision that the court’s one-level upward departure was warranted

should   not    restrict   the    district    court    in   determining     the

appropriate sentence on remand.

            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 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




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