                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4229



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CHARLES JAMAL HUGGINS, a/k/a Mal,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-02-208)


Submitted:   March 29, 2006                 Decided:   April 20, 2006


Before TRAXLER, KING, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


D. Craig Brown, Florence, South Carolina, for Appellant. Alfred
William Walker Bethea, Jr., Assistant United States Attorney,
Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Charles   Jamal   Huggins   pled   guilty   to   conspiracy   to

possess with intent to distribute and to distribute fifty grams or

more of cocaine base crack.    On appeal, counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), alleging

that there are no meritorious issues on appeal but raising as

potential issues whether the magistrate judge conducted Huggins’s

guilty plea hearing in compliance with Fed. R. Crim. P. 11, and

challenging some of Huggins’s sentencing enhancements in light of

Blakely v. Washington, 542 U.S. 296 (2004).       For the reasons that

follow, we affirm Huggins’s conviction, but vacate and remand for

resentencing.

          We agree with counsel that Huggins’s guilty plea was

conducted in compliance with Fed. R. Crim. P. 11 and that his

conviction is otherwise proper.       The Supreme Court’s decision in

Blakely, however, has now been extended to the Federal Sentencing

Guidelines in United States v. Booker, 543 U.S. 220 (2005).             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.         543 U.S. at 244-45

(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


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mandatory.     Id. at 233 (Stevens, J., opinion of the Court), 245-46

(Breyer, J., opinion of the Court).

           Because Huggins did not raise a Sixth Amendment issue in

the district court, we review for plain error.            United States v.

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

error, Huggins 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, our “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 sentenced Huggins under the then

mandatory Federal Sentencing Guidelines by determining that he was

responsible for three kilograms of crack, under U.S. Sentencing

Guidelines Manual § 2D1.1(c)(1) (2002), giving him a base offense

level of 38. Without the additional drug weight finding, Huggins’s

base offense level for the fifty grams to which he pled guilty

would   have   been   32,   under   USSG    §   2D1.1(c)(4),   giving   him   a

sentencing range of 121 to 151 months.            The court also increased

Huggins’s base offense level by two for obstruction of justice,

under USSG § 3C1.1, but lowered his offense level by two under the

safety valve provision, USSG §§ 2D1.1(b)(5), 5C1.2.                This gave


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Huggins a total offense level of 38, which, with his criminal

history category of I, yielded a sentencing range of 235 to 293

months.      The court sentenced Huggins within this range to a

240-month term of imprisonment.         This term exceeds the sentencing

range of 121 to 151 months within which Huggins could have been

sentenced     based    solely    on    his    admitted   conduct.        USSG

§ 2D1.1(c)(4). In light of Booker and Hughes, we find that the

district court’s plain error in sentencing Huggins based on facts

found by the court affects his substantial rights and warrants

correction.1

             In accordance with Anders, we have reviewed the entire

record in this case for any other meritorious issues on appeal,

including the issues raised in Huggins’s pro se supplemental brief,

and   have   found    none.     Accordingly,    although   we   affirm   the

conviction, we vacate the sentence and remand for resentencing.2


      1
      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 Huggins’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”).
      2
      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.”       543 U.S. at 264
(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

                                      - 4 -
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




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 &
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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