                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-5005



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


WILLIAM SANFORD GADD,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-02-240)


Submitted:   July 29, 2005                 Decided:   August 24, 2005


Before WILLIAMS and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded in part by unpublished per curiam opinion.


Ward Morgan, Bluefield, West Virginia, for Appellant. Karen B.
George, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             William Sanford Gadd appeals his     240-month sentence for

two counts of issuing false securities in the name of the United

States, in violation of 18 U.S.C. § 514 (2000), and two counts of

bankruptcy fraud, in violation of 18 U.S.C. §§ 152, 157 (2000).

Finding that the district court’s imposition of sentence violated

Gadd’s Sixth Amendment right to trial by a jury, we vacate the

sentence     and   grant   the   Government’s   motion   to   remand   for

resentencing.

             Gadd first claims on appeal that the district court erred

in calculating the loss Gadd intended to inflict on the various

victims of his fraudulent schemes.         Gadd claims that the district

court’s reliance on the face value of Gadd’s fraudulent demands

unreasonably exaggerated the loss because such a financial loss was

not economically feasible.        We have specifically rejected this

claim under similar circumstances.         See United States v. Miller,

316 F.3d 495, 499-502 (4th Cir. 2003).        Accordingly, this claim is

meritless.

           Gadd also claims that his sentence violated his Sixth

Amendment right to trial by a jury.        Because we conclude that the

district court’s application of the Sentencing Guidelines enhanced

Gadd’s sentence on the basis of facts he did not admit and that




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were not found by a jury beyond a reasonable doubt, we agree.*                         See

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

Hughes, 401 F.3d 540 (4th Cir. 2005).                 Accordingly, we vacate his

sentence    and     grant    the       Government’s     motion        to    remand     for

resentencing.

            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 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.




     *
      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 Gadd’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”).

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          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 IN PART




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