                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4247



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


JIMMY BIJOU, a/k/a Jimmy Bigou,

                                               Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-5272)


Submitted:   October 31, 2005             Decided:   November 30, 2005


Before WIDENER, LUTTIG, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Noell Tin, TIN FULTON GREEN & OWEN, P.L.L.C., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Robert J. Gleason, 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Unpublished opinions are not binding precedent in this circuit.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:

            This case is before us on remand from the United States

Supreme   Court   for    further      consideration    in   light   of   United

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

Bijou, 92     F. App. 966 (4th Cir. Apr. 13, 2004) (unpublished),

vacated, 125 S. Ct. 1022 (2005), we affirmed Jimmy Bijou’s 240-

month sentence imposed upon his plea of guilty to three counts of

possession of a firearm by a convicted felon.                After reviewing

Bijou’s sentence in light of Booker, we vacate his sentence and

remand for resentencing.

            Bijou contends that his sentence violates the Sixth

Amendment because the district court in sentencing him applied the

cross     reference      in    U.S.      Sentencing     Guidelines       Manual

§ 2K2.1(c)(1)(A) (2002).         The result is that Bijou is serving a

sentence based upon facts (possession of a certain amount of drugs

and possession of a firearm during the drug offense) found by the

judge by a preponderance of the evidence, rather than facts found

by a jury or admitted to by Bijou.            Bijou raised this issue in the

district court, and our review is therefore de novo.                See United

States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).

            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.


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Booker, 125 S. Ct. at 746, 750 (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 mandatory. Id. at 746 (Stevens, J., opinion

of the Court); id. at 756-67 (Breyer, J., opinion of the Court).

            Here,   the     district      court   sentenced   Bijou   under     the

mandatory Sentencing Guidelines by applying the cross reference,

determining the base offense level based upon the amount of drugs,

and   enhancing     that    level    by    two    levels   based   upon     Bijou’s

possession of a firearm during the commission of the drug offense.

These findings, among others, resulted in a guideline range of 210-

262 months’ imprisonment, and the court sentenced Bijou to 240

months in prison.

            Had Bijou been sentenced based upon the facts to which he

pled guilty, his total offense level would have been 24.                    With a

criminal history category of VI, Bijou’s guideline range would have

been 100-125 months’ imprisonment.             Because his 240-month sentence

exceeds the maximum authorized by the facts he admitted, there was

a   Sixth   Amendment      error    requiring     resentencing.1      See    United

States v. Evans, 416 F.3d 298, 300 (4th Cir. 2005).




      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” Bijou’s sentencing.

                                       - 3 -
          Accordingly, we vacate Bijou’s sentence and remand for

resentencing.2   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




     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.” 125 S. Ct. at 767
(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
sentence. Hughes, 401 F.3d at 546. If the sentence falls outside
the Guideline 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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