                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4574



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ROBERT WAYNE BOGGS,

                                            Defendant - Appellant.


         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-6726)


Submitted:   February 10, 2006            Decided:   March 17, 2006


Before MOTZ and KING, Circuit Judges, and Pasco M. BOWMAN, Senior
Circuit Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation.


Affirmed in part; vacated and remanded in part by unpublished per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


Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant.   Anna Mills Wagoner, United States Attorney, Angela
Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
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Unpublished opinions are not binding precedent in this circuit.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    Robert    Wayne    Boggs’s

convictions for kidnapping, transmitting a ransom demand, and using

a gun in conjunction with the kidnapping.         United States v. Boggs,

No. 03-4574 (4th Cir. June 9, 2004) (unpublished).             The Supreme

Court vacated our decision and remanded Boggs’s case for further

consideration in light of United States v. Booker, 125 S. Ct. 738

(2005).   Because we conclude that Boggs’s sentence was enhanced

based upon facts not charged in the indictment or admitted by

Boggs, we vacate his sentence and remand for further proceedings.1

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

Supreme Court applied the rationale of Blakely v. Washington, 542

U.S. 296 (2004), to the federal sentencing guidelines and held that

the   mandatory    guidelines   scheme    that    provided   for     sentence

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment.         Booker, 125 S. Ct.

at 746-48, 755-56 (Stevens, J., opinion of the Court).             The Court

remedied the constitutional violation by severing and excising the

statutory provisions that mandate sentencing and appellate review


      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 Boggs’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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under the guidelines, thus making the guidelines advisory.                    Id. at

756-57 (Breyer, J., opinion of the Court). Subsequently, in United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005), this court

held   that    a    sentence    that    was     imposed     under   the   pre-Booker

mandatory sentencing scheme and was enhanced based on facts found

by the court, not by a jury (or, in a guilty plea case, not

admitted to by the defendant), constitutes plain error that affects

the defendant’s substantial rights and warrants reversal under

Booker   when      the   record      does    not    disclose   what   discretionary

sentence the district court would have imposed under an advisory

guidelines scheme.         Hughes, 401 F.3d at 546-56.

              Because Boggs did not object to the sentencing range of

168 to 210 months’ imprisonment determined by the district court,

we review the district court’s guidelines calculation for plain

error.   United States v. Olano, 507 U.S. 725, 732 (1993); Hughes,

401 F.3d at 547.         Under the plain error standard, Boggs must show:

(1) there was error; (2) the error was plain; and (3) the error

affected his substantial rights.               Olano, 507 U.S. at 732-34.       Even

when these conditions are satisfied, this court may exercise its

discretion     to    notice    the    error     only   if   the   error   “seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.”       Id. at 736 (internal quotation marks omitted).

              We have reviewed the record in light of Booker and

conclude that two of the enhancements violated Boggs’s Sixth


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Amendment rights.           Boggs received a three-level increase to his

offense      level    for   sexual   exploitation      of   the   victim,    USSG   §

2A4.1(b)(5)(A), and a two-level increase by reference to the

guideline for criminal sexual abuse, USSG §§ 2A4.1(b)(7)(A), 2A3.1.

Neither of these enhancements was based on facts proven to a jury

or admitted by Boggs.          The error was therefore plain, Hughes, 401

F.3d at 547-48, and because it significantly increased Boggs’s

guideline sentencing range, the error affected his substantial

rights.       Id. at 548.       We also conclude that “[t]here can be no

doubt that failure to notice such an error would seriously affect

the    fairness,       integrity,      or   public    reputation     of     judicial

proceedings.”         Id. at 555.      “[A]lthough it is certainly possible

that [Boggs] will receive the same sentence on remand,” the record

does not compel that conclusion.             Id. at 556.

               Accordingly, while we affirm Boggs’s convictions, we

vacate his 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.

                                                      AFFIRMED IN PART; VACATED
                                                           AND REMANDED IN PART


       2
      On remand, the district court must calculate the appropriate
guidelines range, consider that range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. If the district
court imposes a sentence outside the guidelines range, the court
should state its reasons for doing so. Hughes, 401 F.3d at 546.

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