                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-4913



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JEFFREY DAJUAN ALLEN,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Charles H. Haden II,
District Judge. (CR-02-74)


Submitted:     May 25, 2005                 Decided:   July 28, 2005


Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Steven I. Loew, 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Unpublished opinions are not binding precedent in this circuit.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:

             Jeffrey Dajuan Allen appeals from the judgment of the

district court sentencing him to 120 months’ imprisonment for

possession of a firearm as a convicted felon, in violation of 18

U.S.C.   §   922(g)   (2000).     Finding   that   the   district   court’s

imposition of sentence violated Allen’s Sixth Amendment right to

trial by a jury, we affirm the conviction,1 vacate the sentence,

and remand for further proceedings.

             Allen alleges the district court erred in applying the

Sentencing Guidelines by concluding he had acted with premeditation

or by lying in wait to effectuate the attempted murder of Dennis

Painter.     We have previously noted that no set period of time is

required     to   demonstrate   premeditation.     See    Faust   v.    North

Carolina, 307 F.2d 869, 871 (4th Cir. 1962).        All that is required

is that the defendant acted with a “cool mind [and] did, in fact,

reflect, at least for a short period time before his act.”             United

States v. Shaw, 701 F.2d 367, 392-93 (5th Cir. 1983).             Under the

facts of this case, and subject to the discussion below, we cannot

conclude that the district court clearly erred in its determination

regarding premeditation.

             In his supplemental brief, Allen claims the district

court’s imposition of sentence violates his Sixth Amendment right

to trial by a jury.     Because we conclude that the district court’s


     1
      Allen does not challenge his conviction.

                                   - 2 -
application of the sentencing guidelines affected Allen’s sentence

on the basis of factual questions not found by the 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 Allen’s sentence and remand for

further proceedings.2      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.

            We dispense with oral argument because the facts and




     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 Allen’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”).

                                   - 3 -
legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.


                                                  AFFIRMED IN PART,
                                      VACATED IN PART, AND REMANDED




                              - 4 -
