                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4942



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


LAMAR REDFERN, a/k/a Josh Fisher,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.  Lacy H. Thornburg,
District Judge. (CR-01-151)


Submitted:   May 4, 2005                   Decided:   July 13, 2005


Before LUTTIG, MICHAEL, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Kenneth M. Smith, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Lamar Redfern appeals his convictions and sentence for

armed bank robbery and use of a firearm in the commission of a

crime of violence, in violation of 18 U.S.C. §§ 924, 2113 (2000).

We affirm his conviction.         Finding that the district court’s

imposition of sentence violated Redfern’s Sixth Amendment right to

trial by a jury, we vacate the sentence and remand for further

proceedings.

              Redfern first claims on appeal that the district court

erred in denying his motion for judgment of acquittal, filed

pursuant to Fed. R. Crim. P. 29.        “The verdict of a jury must be

sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.”            Glasser v. United

States, 315 U.S. 60, 80 (1942).       Our review of the record discloses

that substantial evidence supported the verdict.          Two of Redfern’s

co-conspirators testified that Redfern had participated in the

robbery of three banks.      They testified that he was armed at the

time and acted as a guard at the entrance to each bank while

co-conspirators cleared out the tellers’ cash drawers.                    This

evidence   was    corroborated   by   (1)   the   testimony   of   Redfern’s

girlfriend who told the jury about changes in Redfern’s lifestyle

at the time of the robberies and (2) the evidence of a stolen

license plate found behind the home of Redfern’s grandmother, where

he   lived.      Although   Redfern   disputes    the   testimony    of   his


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co-conspirators as self-serving, it is the jury, and not this

court,   that    is   best   suited    to   weigh    the   credibility   of    the

witnesses.      See United States v. D’Anjou, 16 F.3d 604, 614 (4th

Cir. 1994).     Moreover, the district court adequately addressed the

jury’s question about a co-conspirator’s omission from several

counts of the indictment; we find no reasonable likelihood that the

jury was confused.      Accordingly, the district court did not err in

denying Redfern’s motion for judgment of acquittal.

           Redfern next asserts that the district court erred in

denying his motion for a mental evaluation.                The district court

must order a competency hearing under 18 U.S.C. § 4241(a) (2000),

if there is reasonable cause to believe the defendant may presently

be suffering from a mental defect rendering him incompetent.                  This

court’s review of a district court’s refusal to order a competency

hearing is for an abuse of discretion.              United States v. West, 877

F.2d 281, 285 n.1 (4th Cir. 1989).             The district court had the

opportunity to observe Redfern throughout the trial, and indeed,

Redfern participated in his defense.           Our review of the transcript

discloses no unusual behavior or obvious lack of understanding or

participation on Redfern’s part.            Furthermore, Redfern failed to

present anything more than speculative and inconclusive allegations

regarding his mental state.           Accordingly, we find no error on the

part of the district court in denying Redfern’s motion.




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                Finally,       Redfern        claims    that    the    district          court’s

imposition of sentence violated his Sixth Amendment right to trial

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

application           of    the    sentencing        guidelines       enhanced       Redfern’s

sentence on the basis of facts 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, although we affirm Redfern’s convictions, we

vacate his sentence and remand for further proceedings.

                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


         *
      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 Reed'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”).

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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

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




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