                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4165



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellant,

          versus


KEAT SHAUN WINGATE,

                                             Defendant - Appellee.


Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Matthew J. Perry, Jr., Senior
District Judge. (3:03-cr-00015-MJP-1)


Submitted:   November 30, 2006         Decided:     December 28, 2006


Before WIDENER, KING, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Reginald I. Lloyd, United States Attorney, Stanley D. Ragsdale,
Assistant United States Attorney, Columbia, South Carolina, for
Appellant.   Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, P.C.,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             The United States appeals the 135-month imprisonment

sentence imposed on Keat Shaun Wingate by the district court

following remand for resentencing.           Wingate pleaded guilty to one

count of conspiracy to distribute 50 grams or more of cocaine base,

in violation of 21 U.S.C. § 846 (2000).                   The district court

originally sentenced Wingate to 262 months’ imprisonment, based

upon its mandatory application of the sentencing guidelines, and

its enhancement of Wingate’s base offense level based upon facts

found by a preponderance of the evidence by the court and not

charged in the indictment or admitted by Wingate, in violation of

the Supreme Court’s directive in United States v. Booker, 543 U.S.

220 (2005), which case was decided after the original sentencing,

but before Wingate’s appeal.        We affirmed Wingate’s conviction but

vacated his sentence.         On remand, the district court sentenced

Wingate to 135 months’ imprisonment, below the applicable mandatory

statutory minimum sentence.         The Government appeals, contending as

its sole assertion of error that the district court erred in

sentencing    Wingate    below   the   twenty-year       statutory    mandatory

minimum sentence.       We agree.

           The decision in Booker did not change the rule that,

absent   motion   by    the   Government     on   the   basis   of   substantial

assistance, judges are not at liberty to depart below an applicable

statutory mandatory minimum sentence, and a mandatory statutory


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limitation must be implemented where applicable. See United States

v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126 S. Ct.

2309 (2006); United States v. Robinson, 404 F.3d 850, 862 (4th

Cir.), cert. denied, 126 S. Ct. 288 (2005).        In finding that the

district court correctly determined Wingate’s base offense level,

and   directing   the   district   court   to   resentence   Wingate   in

accordance with Booker and Hughes,* we did not intend for the

district court to disregard applicable statutory law, including the

twenty-year mandatory minimum sentence applicable to Wingate’s

conviction.   See 21 U.S.C. § 841(b)(1)(A) (2000); U.S. Sentencing

Guidelines Manual § 5G1.1 (2004). Accordingly, we vacate Wingate’s

sentence and remand for resentencing.           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




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

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