                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4755



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


TIMOTHY DEWITT,

                                              Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-6102)



Submitted:   October 19, 2005             Decided:   December 1, 2005


Before WIDENER, WILKINSON, and NIEMEYER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Eric B. Snyder, BAILEY & GLASSER, L.L.P., Charleston, West
Virginia, for Appellant. Charles T. Miller, Acting United States
Attorney, John L. File, Assistant United States Attorney, Beckley,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            This case is before us on remand from the United States

Supreme   Court   for    further   consideration       in    light   of   United

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

Dewitt, 100 F. App. 145 (4th Cir. June 4, 2004) (unpublished),

vacated, 125 S. Ct. 1009 (2005), we affirmed Dewitt’s 168-month

sentence imposed after he pled guilty to distributing more than

five grams of crack cocaine on March 28, 2002.                After reviewing

Dewitt’s appeal in light of Booker, we vacate his sentence and

remand for resentencing.

            Dewitt contends that his sentence violates the Sixth

Amendment   because     the   district   court    at   sentencing     held   him

accountable    for    214.7   grams    of     crack,   see   U.S.    Sentencing

Guidelines Manual § 2D1.1(c)(1) (2002), enhanced his sentence for

possession of a firearm, see USSG § 2D1.1(b)(1), and assessed two

criminal history points based upon the court’s conclusion that

Dewitt was under a criminal justice sentence at the time he

committed the instant offense, see USSG § 4A1.1(d). Because Dewitt

did not raise the Sixth Amendment issue in the district court, we

review for plain error.       See United States v. Hughes, 401 F.3d 540,

547 (4th Cir. 2005).          To demonstrate plain error, Dewitt must

establish that error occurred, that it was plain, and that it

affected his substantial rights.            Id. at 547-48.     If a defendant

satisfies     these   requirements,      this     court’s     “discretion    is


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appropriately exercised only when failure to do so would result in

a miscarriage of justice, such as when the defendant is actually

innocent or the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.”      Id. at 555 (internal

quotation marks and citation omitted).

            In Booker, the Supreme Court held that the mandatory

manner in which the Sentencing Guidelines required courts to impose

sentencing enhancements based on facts found by the court by a

preponderance of the evidence violated the Sixth Amendment. 125 S.

Ct. at 746, 750 (Stevens, J., opinion of the Court).         The Court

remedied the constitutional violation by making the Guidelines

advisory through the removal of two statutory provisions that had

rendered them mandatory.   Id. at 746 (Stevens, J., opinion of the

Court); id. at 756-67 (Breyer, J., opinion of the Court).

            Here, the district court sentenced Dewitt under the

mandatory   federal   Sentencing    Guidelines   by   determining   drug

quantity, applying an enhancement for possession of a firearm, and

assessing two criminal history points based upon Dewitt’s status at

the time he committed the instant offense.       These findings, among

others, yielded a Sentencing Guideline range of 168 to 188 months,

and the court sentenced Dewitt to a 168-month term of imprisonment.

At the plea hearing, Dewitt admitted that he distributed 13.7 grams

of crack but did not admit that he possessed a firearm.             Thus,

using only the amount of drugs to which Dewitt admitted at the plea


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colloquy and excluding the enhancement for possession of a weapon

and the downward adjustment for acceptance of responsibility under

USSG § 3E1.1, see United States v. Evans, 416 F.3d 298, 300 n.4

(4th Cir. 2005), Dewitt’s total offense level would have been

twenty-six.      See USSG § 2D1.1(c)(7).             With a criminal history

category of III, the resulting guideline range would be seventy-

eight to eighty-seven months of imprisonment.1             USSG Ch. 5, Pt. A

(Sentencing Table).          In light of Booker and Hughes, we find that

the district court’s plain error in sentencing Dewitt based on

facts    found   by    the   court   affects   his   substantial   rights   and

warrants correction.2

            Accordingly, we vacate Dewitt’s sentence and remand for

resentencing.3        We dispense with oral argument because the facts


     1
      We take no position on whether the district court’s
assessment of two criminal history points under USSG § 4A1.1(d)
violates the Sixth Amendment because, even assuming a criminal
history category of III, Dewitt is entitled to be resentenced.
     2
      Just as we noted in Hughes, 401 F.3d at 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 Dewitt’s sentencing.
     3
      Although the 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
(Breyer, J., opinion of the Court). 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. Hughes, 401 F.3d at 546. 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) (West 2000 &

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and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.


                                              VACATED AND REMANDED




Supp. 2005).   Hughes, 401 F.3d at 546.    The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.

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