                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4870



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JEREMY SPENCER KING,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (CR-03-366-FL)


Submitted:   September 9, 2005        Decided:   September 30, 2005


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Jane E. Pearce, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Jeremy Spencer King appeals the eighty-two month sentence

imposed after a plea of guilty to one count of possession of a

firearm     by    a   convicted      felon.        King    does    not     challenge     his

conviction.       Finding that the district court's pronouncement of a

lower alternative sentence demonstrates that King’s substantial

rights were abridged by the sentence actually imposed, we vacate

the sentence, and remand for resentencing consistent with United

States v. Booker, 125 S. Ct. 738 (2005).

             King pled guilty to one count of possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000).

At sentencing, the district court pronounced a sentence of eighty-

two months’ imprisonment in accordance with the United States

Sentencing Guidelines.               The district court also announced an

alternative       sentence      of     sixty-five         months    based     on    recent

developments calling into question the application of mandatory

sentencing guidelines schemes. See Blakely v. Washington, 542 U.S.

296 (2004).

             In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court ruled the Sixth Amendment is violated when a district

court,    acting      pursuant    to    the   Sentencing          Reform    Act    and   the

guidelines, imposes a sentence greater than the maximum guideline

sentence authorized by the facts found by the jury alone.                          See id.

at   746,        750.      In        order    to     preserve        the     guidelines’


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constitutionality, the Court excised the statutory provision that

made them mandatory, id. at 764-65, rendering them merely advisory.

            Appellant alleges the court below committed error in

sentencing    him       under    the    mandatory      guidelines     regime.        The

government concedes error and agrees that appellant should be

resentenced. Accordingly, we vacate King’s sentence and remand for

resentencing.*       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

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.


     *
       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 King’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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          We dispense with oral argument because the facts and

legal contentions are adequately presented in the material before

the court and argument would not aid the decisional process.



                                             VACATED AND REMANDED




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