                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-4185



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


RODNEY LAWRENCE,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.   Frank W. Bullock, Jr.,
Senior District Judge. (1:02-cr-00087-FWB)


Submitted:   August 4, 2006                 Decided:   August 25, 2006


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Benjamin   D.   Porter,   MORROW,   ALEXANDER   &   PORTER,   PLLC,
Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Sandra J. Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Rodney Lawrence appeals his ninety-six month sentence

imposed following his guilty plea to one count of conspiracy to

launder money in violation of 18 U.S.C. § 1956(a)(1)(A)(ii), (h)

(2000), and to two counts of structuring transactions to evade

reporting requirements in violation of 31 U.S.C. § 5324(a)(3), (c)

(2000).     Lawrence does not appeal his conviction.          We vacate the

sentence and remand for resentencing in light of United States v.

Booker, 543 U.S. 220 (2005).

            Lawrence asserts that his Sixth Amendment rights were

violated because his sentence is based in part on judicially found

facts that he did not admit in his guilty plea.               Specifically,

Lawrence    argues    that   the   base   offense   level   was   erroneously

increased twenty levels based on a judicial finding that the money

laundered was derived from the distribution of 400 to 700 kilograms

of marijuana.        Lawrence additionally asserts that a two level

enhancement was impermissibly added based on a judicial finding

that he was the organizer or leader of a criminal activity that

involved less than five participants.          Because Lawrence preserved

this issue by objecting under         Blakey v. Washington, 542 U.S. 296

(2004), during sentencing, this court’s review is for harmless

error.     United States v. Rodriguez, 433 F.3d 411, 415 (4th Cir.

2006).     The Government concedes error, and agrees that Lawrence’s

sentence must be vacated and remanded for resentencing.


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          We find that the district court committed Sixth Amendment

error in sentencing Lawrence.1   Although Lawrence pled guilty to

laundering money derived from a marijuana distribution operation,

there is no evidence that Lawrence admitted to the amount of

marijuana for which he was held accountable.    Moreover, Lawrence

never admitted to holding a leadership position in the operation.

Rather, these relevant facts were determined by the probation

officer, and adopted by the district court.    Accordingly, because

the district court’s determinations of the base offense level and

sentencing enhancement were based upon facts not admitted by

Lawrence, we conclude that they were applied in error.     If drug

quantity is not used to determine Lawrence’s base offense level,

and the enhancement for holding a leadership position is removed,

Lawrence’s total offense level would be sixteen.2    This, coupled

with Lawrence’s criminal history category of I, yields a sentencing

range of twenty-one to twenty-seven months.   Because this range is

lower than the sentence imposed upon Lawrence, we conclude that the

Sixth Amendment error is not harmless.




     1
      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 Lawrence’s sentencing.
     2
      See United States v. Evans, 416 F.3d 299, 300 n.4 (4th Cir.
2005) (noting that, in determining whether Sixth Amendment error
occurred, sentence imposed must be compared to permissible
guideline range before adjusting for acceptance of responsibility).

                              - 3 -
          Accordingly, we vacate Lawrence’s sentence and remand to

the district court for resentencing.3      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




     3
      Although the sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court “must consult [the]
Guidelines and take them into account when sentencing” a defendant.
543 U.S. at 264.     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.A. § 3553(a) (West 2000 & Supp. 2006), and then impose the
sentence. See Hughes, 401 F.3d at 546. If that sentence falls
outside of the Guideline range, the court should explain its
reasons for the departure as required by 18 U.S.C.A. § 3553(c)(2).
The sentence must be “within the statutorily prescribed range” and
“reasonable.” Id. at 547.

                              - 4 -
