                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4578



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES LAWRENCE WILSON,

                                              Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-5732)


Submitted:   November 9, 2005             Decided:   December 5, 2005


Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished per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


Andrew B. Banzhoff, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Donald D. Gast, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          This case is before us on remand from the United States

Supreme Court.     We previously affirmed James Lawrence Wilson’s

conviction for conspiracy to distribute fifty or more grams of

methamphetamine    and   his   eighty-seven    month      sentence.   United

States v. Wilson, No. 03-4578 (4th Cir. May 7, 2004) (unpublished).

The Supreme Court vacated our decision and remanded Wilson’s case

for further consideration in light of United States v. Booker, 125

S. Ct. 738 (2005).

          A Sixth Amendment error occurs when a district court

imposes a sentence greater than the maximum permitted based on

facts found by a jury or admitted by the defendant.           Booker, 125 S.

Ct. at 756.       Because Wilson did not raise a Sixth Amendment

challenge to his guidelines sentence in the district court, our

review is for plain error.       United States v. Hughes, 401 F.3d 540,

547 (4th Cir. 2005).

          The    facts   found    by   the   jury   are    that   Wilson   was

responsible for fifty or more grams of methamphetamine distribution

as part of the charged conspiracy.*        This drug quantity corresponds

with a base offense level of twenty-six, see USSG § 2D1.1(c)(7),

and a sentencing range of sixty-three to seventy-eight months’


     *
      The district court’s determination that the conspiracy
created a substantial risk of harm to human life was not a factor
considered by the jury.     Accordingly, for the purpose of the
guidelines calculation we do not consider this factor under U.S.
Sentencing Guidelines Manual § 2D1.1(b)(5)(B) (2002).

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imprisonment.    See USSG Ch. 5, Pt. A, table. (applying Wilson’s

criminal history category of I). Wilson’s sentence of eighty-seven

months exceeds this range.       Because this error affects Wilson’s

substantial rights, we conclude it is plainly erroneous.                See

Hughes, 401 F.3d at 547-48.

           Accordingly, although we affirm Wilson’s conviction for

the reasons stated in our prior opinion of May 7, 2004, we vacate

the   sentence   imposed   by   the   district   court   and   remand   for

resentencing in accordance with Booker.          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 AND REMANDED IN PART




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