                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4856



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ROBERT EARL LOWRY,

                                             Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-8722)


Submitted:   November 18, 2005            Decided:   January 6, 2006


Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Kelly L. Greene, STUBBS & PERDUE, P.A., New Bern, North Carolina,
for Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           This case is before the court on remand from the United

States Supreme Court.      We previously affirmed Robert Earl Lowry’s

convictions and sentences for two counts of distribution of cocaine

base, one count of possession of a firearm in the furtherance of

drug trafficking, and one count of possession of a firearm as a

convicted felon, in violation of 18 U.S.C. §§ 922, 924 (2000) and

21 U.S.C. § 841 (2000).       United States v. Lowry, No. 03-4856 (4th

Cir. Nov. 22, 2004) (unpublished).           The Supreme Court vacated our

decision and remanded Lowry’s case for further consideration in

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

           A Sixth Amendment error occurs when a district court

imposes a sentence greater than the maximum permitted based on

facts found by a jury or admitted by the defendant.             Booker, 125 S.

Ct. at 756.        Because Lowry did not raise a Sixth Amendment

challenge or object to the mandatory application of the guidelines

in the district court, our review is for plain error.                    United

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

           The     Government’s     indictment   did   not     specify   a   drug

quantity; consequently, the jury’s verdict on grouped counts one,

three, and four supports a finding that Lowry is responsible for an

indeterminate quantity of cocaine base.           This corresponds with a

base offense level of twelve, see U.S. Sentencing Guidelines Manual

§   2D1.1(c)(14)    (2002),   and    a   sentencing    range    of   fifteen   to


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twenty-one months’ imprisonment.           USSG Ch. 5, Pt. A, table (based

on Lowry’s criminal history category of III).                    Alternatively,

grouping the offenses under USSG § 2K2.1 results in an offense

level    of    fourteen,    with   a   corresponding     sentencing   range    of

twenty-one of twenty-seven months.              See USSG § 2K2.1(a)(7).       The

sentence imposed by the district court on counts one, three, and

four exceeds either range.1            Because this amounts to error that

affects Lowry’s substantial rights, we conclude his sentence is

plainly erroneous.2        See Hughes, 401 F.3d at 547-48.

               Accordingly we vacate Lowry’s sentence with regard to

counts one, three, and four, and we remand for resentencing in

accordance with Booker. We affirm Lowry’s sentence under count two

of the indictment.         We affirm Lowry’s convictions for the reasons

stated    in    our   opinion   of     November   22,    2004.    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


     1
      Count two (possession of a firearm in the furtherance of drug
trafficking) required a mandatory minimum consecutive sentence of
five years. See 18 U.S.C. § 924(c)(1)(A)(i) (2000). Accordingly,
the sentence on count two was not affected by the district court’s
application of the sentencing guidelines.
     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 Lowry’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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remand, the district court should first determine the appropriate

sentencing range under the Guidelines, making all factual findings

appropriate for that determination.     See United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005) (applying Booker on plain error

review).   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.      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 AND REMANDED IN PART




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