                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-4788



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JAMES PHILLIP BOOHER,

                                            Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-5249)
                         ______________

Submitted:   July 26, 2006            Decided:   September 25, 2006


Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Jay H. Steele, Lebanon, Virginia, for Appellant. John L. Brownlee,
United States Attorney, Jean B. Hudson, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           James Phillip Booher pled guilty to possession of a

firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1)

(2000).    The district court determined at sentencing that he

obstructed justice by suborning his girlfriend’s perjury before the

grand jury, U.S. Sentencing Guidelines Manual § 3C1.1 (2002), and

accordingly   denied   him   an     adjustment   for   acceptance   of

responsibility.   USSG § 3E1.1.     Booher did not object to a two-

level enhancement recommended in the presentence report under USSG

§ 2K2.1(b)(4) for a stolen firearm.       The district court imposed a

sentence of 100 months imprisonment.        We affirmed the sentence.

United States v. Booher, 94 F. App’x 160 (4th Cir. 2004) (No. 03-

4788).    The Supreme Court later granted Booher’s petition for

certiorari, vacated this court’s judgment in light of United

States v. Booker, 543 U.S. 220 (2005), and remanded the case for

further proceedings.   For the reasons explained below, we vacate

the sentence and remand for resentencing.

           On remand, Booher argues that the district court plainly

erred under Booker in making enhancements for a stolen gun and

obstruction of justice based on facts which he did not admit, but

were instead found by the court, thus violating his Sixth Amendment

rights.   He also asserts that there is nothing in the record that

indicates the district court would impose the same sentence if his




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case were remanded for resentencing under an advisory sentencing

scheme.

               Under Booker, a Sixth Amendment error occurs when the

district       court   imposes     a    sentence     greater      than   the      maximum

permitted based on facts found by a jury or admitted by the

defendant.      Booker, 543 U.S. at 245.            Because Booher 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. Olano, 507 U.S. 725, 731-32 (1993); United

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

demonstrate plain error, an appellant must establish that an error

occurred, that it was plain, and that it affected his substantial

rights.    Hughes, 401 F.3d at 547-48.               If an appellant meets these

requirements, the court’s “discretion is 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).

               Here, the district court found that Booher had obstructed

justice, a fact he contested, and increased the offense level from

20 to 22.        In doing so, the district court erred by making a

factual finding that increased Booher’s sentence under a mandatory

guidelines scheme.         Hughes, 401 F.3d at 547.              The error was plain


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because Booker abrogated the previous law of this Circuit.             Id. at

547-48.

            Further, Booher’s failure to contest the recommended

enhancement for a stolen firearm (which increased the offense level

to 24) may not be treated as an admission that the firearm was

stolen.   In United States v. Milam, 443 F.3d 382 (4th Cir. 2006),

we held that, for Booker purposes, a defendant’s failure to object

to the presentence report does not constitute an admission of facts

set forth in the report on which a sentence enhancement is based.

Moreover,    the    evidence   that    the   gun    was    stolen   was   not

overwhelming.      Cf. United States v. Smith, 441 F.3d 254, 272 (4th

Cir. 2006) (declining to notice Booker error where the jury, having

convicted the defendant of various drug offenses, would have found

the specific drug amounts charged in the indictment by relying on

the   uncontroverted    testimony     proffered    by   several   witnesses),

petition for cert. filed, July 10, 2006 (No. 06-5223).               Although

Booher asserts that he is unaware of what facts were relied on to

reach the conclusion that the gun was stolen, the record discloses

that the probation officer recommended the enhancement based on

information from the FBI’s National Crime Information Center, which

showed that the gun had been stolen in Newport, Tennessee.                 We

conclude that this information does not constitute overwhelming

evidence that the gun was stolen.




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            Without the two enhancements, Booher’s offense level

would have been 20 and his guideline range would have been 70-87

months.     Booher’s 100-month sentence thus exceeds the maximum

authorized based on facts he admitted.               We therefore exercise our

discretion to correct the error. Because resentencing is warranted

on   this   ground,     we    need    not    decide     whether     the   mandatory

application of the guidelines alone constituted plain error that

would require resentencing.           See United States v. White, 405 F.3d

208, 223 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005) (holding

that a defendant who seeks resentencing on this ground must show

actual prejudice).

            For the reasons discussed, we vacate the sentence imposed

by the district court and remand for resentencing consistent with

Booker.*      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. Hughes, 401 F.3d at 546. The court should consider


      *
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time of [Booher]’s sentencing.” Hughes,
401 F.3d at 545 n.4. 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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this sentencing range along with the other factors described in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and then impose a

sentence.     Id.      If that sentence falls outside the guidelines

range, the court should explain its reasons for imposing a non-

guidelines sentence as required by 18 U.S.C.A. § 3553(c)(2).                 Id.

The sentence must be “within the statutorily prescribed range and

. . . reasonable.”      Id.   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




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