                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4706



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RALPH AVANT,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-03-70)


Submitted:   August 29, 2005             Decided:   November 21, 2005


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Anne R. Littlejohn, LAW OFFICE OF ANN R. LITTLEJOHN, Greensboro,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, D. Scott Broyles, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Ralph Avant pled guilty to one count of conspiracy to

possess   with   intent    to   distribute    cocaine    and    marijuana,   in

violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).               At sentencing,

the district court determined by a preponderance of the evidence

that Avant conspired to possess two kilograms of cocaine.                 Avant

objected to the amount of drugs attributed to him based on Blakely

v. Washington, 542 U.S. 296 (2004).              In response to Avant’s

objections, the Government agreed that Avant could relitigate the

drug quantity if there was a reversal by the Supreme Court on the

Blakely issue.     The district court thereafter sentenced Avant to

100 months’ imprisonment, based upon the two kilograms of cocaine.

           On    appeal,   Avant   contends    that     the    district   court

committed reversible error under Blakely v. Washington, 542 U.S.

296 (2004), and United States v. Booker, 125 S. Ct. 738 (2005),

when it made a factual finding in determining his base offense

level.    Because Avant preserved this issue by objecting to the

presentence report based on Blakely, we review de novo. See United

States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).

           The Government concedes error and that Avant should be

resentenced under Booker based upon an agreement that the drug

quantity could be relitigated if the Supreme Court applied Blakely




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to the federal sentencing guidelines.   We therefore vacate Avant’s

sentence and remand for resentencing in accordance with Booker.*

          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




     *
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4, “[w]e of course offer no criticism of the district judge,
who followed the law and procedure in effect at the time” of
Avant’s sentencing.

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