                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4486



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


REYNOLD GELIN,

                                            Defendant - Appellant.


                            No. 04-4516



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DELIUS PHILIUS, a/k/a Haitian Johnny, a/k/a
Deilius Philius, a/k/a Dehilius Philius, a/k/a
Delius Hilius,

                                            Defendant - Appellant.


Appeals from the United States District Court for the District of
South Carolina, at Florence.    C. Weston Houck, Senior District
Judge. (CR-03-474)


Submitted:   January 13, 2006              Decided:   March 3, 2006


Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


David B. Betts, Columbia, South Carolina; James P. Rogers,
Columbia, South Carolina, for Appellants. 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Unpublished opinions are not binding precedent in this circuit.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).




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PER CURIAM:

           In these consolidated appeals, Delius Philius and Reynold

Gelin appeal their convictions and sentences.   The Appellants pled

guilty pursuant to plea agreements to one count of conspiracy to

distribute and possess with intent to distribute 50 grams or more

of cocaine base or crack cocaine and 5 kilograms of cocaine, in

violation of 18 U.S.C. §§ 841(b)(1)(A), 846 (2000).     Counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating there were no meritorious issues for appeal except

to the extent Gelin’s sentence violated the Sixth Amendment because

it was based upon facts not admitted by him.   Both Appellants filed

pro se supplemental briefs and the Government did not file a brief.

We affirm the convictions and Philius’ sentence and we vacate and

remand Gelin’s sentence.

           We find no error with respect to the Rule 11 proceeding

during which both Appellants pled guilty. We further find no error

in the calculations arrived at in the Presentence Investigation

Reports.

           With respect to Philius’ sentence, we find no error.   In

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the

Supreme Court held that Blakely v. Washington, 542 U.S. 296 (2004),

applied to the federal sentencing guidelines and that the mandatory

manner in which the guidelines required courts to impose sentencing

enhancements based on facts found by the court by a preponderance


                               - 3 -
of the evidence violated the Sixth Amendment.                        Thus, when a

defendant pleads guilty and is sentenced under the mandatory

guidelines scheme, “[a]ny fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.”           Booker, 543 U.S. at           , 125 S. Ct. at

756. In addition, treating the guidelines as mandatory rather than

only advisory is error.         United States v. White, 405 F.3d 208, 216-

17 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).

             Philius   did      not   object    to   either    the    use    of   the

enhancements not admitted by him or found by a jury, nor did he

object to the mandatory use of the sentencing guidelines.                     Thus,

review is for plain error.            United States v. Olano, 507 U.S. 725,

732 (1993). Philius stipulated in his plea agreement to an offense

level   of   38   based    on   the    amount   of   drugs    for    which   he   was

responsible.       As a result of other enhancements to the offense

level for leadership role and the reduction for acceptance of

responsibility,      his   adjusted      offense     level    was    39.     He   was

sentenced to 262 months’ imprisonment.               Had Philius been given an

offense level of 38, based solely upon the facts to which he

admitted,    and    not    including      a    reduction     for    acceptance     of

responsibility, United States v. Evans, 416 F.3d 298, 300 n.4 (4th

Cir. 2005), his sentencing range would have been 235 to 293 months’


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imprisonment. Because his imprisonment does not exceed the maximum

authorized by the facts he admitted, no Sixth Amendment error

occurred.     Id. at 300-01.

             Likewise,     Philius   cannot     establish   plain    error   with

respect to the mandatory application of the guidelines.               In White,

405 F.3d at 216-17, we held treating the guidelines as mandatory

was plain error in light of Booker.            Id. at 216-17.   We declined to

presume prejudice, id. at 217-22, holding that the “prejudice

inquiry, therefore, is . . . whether after pondering all that

happened without stripping the erroneous action from the whole, .

. . the judgment was . . . substantially swayed by the error.”                Id.

at 223 (internal quotation marks and citations omitted).                  To make

this showing, a defendant must “demonstrate, based on the record,

that the treatment of the guidelines as mandatory caused the

district court to impose a longer sentence than it otherwise would

have imposed.”         Id. at 224.       Because “the record as a whole

provide[d]       no   nonspeculative    basis     for   concluding    that    the

treatment of the guidelines as mandatory ‘affect[ed] the district

court’s selection of the sentence imposed,’” id. at 223 (quoting

Williams    v.    United   States,   503   U.S.    193,   203   (1992))    (first

alteration added), we concluded the error did not affect the

defendant’s substantial rights and affirmed the sentence.                 Id. at

225.   Philius cannot show that the treatment of the guidelines as

mandatory affected his sentence.


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              With respect to Gelin’s sentence, we find his sentence

violated the Sixth Amendment.                  Based on his guilty plea to 5

kilograms of cocaine and 50 grams of crack cocaine, he was eligible

for   an    offense       level   of   32.     That   results   in    a    sentencing

guidelines range of 121 to 151 months’ imprisonment.                          Gelin’s

actual range of imprisonment was much higher and as a result he was

sentenced to 324 months’ imprisonment, or significantly higher than

a sentence based upon conduct to which he admitted.                       Because the

court      imposed    a    sentence    using    the   sentencing     guidelines    as

mandatory and using facts not admitted by Gelin or found by a jury,

the sentence violated the Sixth Amendment and should be vacated and

remanded for resentencing pursuant to Booker.*




      *
      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 Gelin’s sentencing. 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 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). Hughes, 401 F.3d at 546. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.



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            We have considered the issues raised in Philius’ pro se

supplemental brief and find them without merit.      We have likewise

considered the issues raised by Gelin in his brief.        Because the

sentence will be remanded for resentencing, we will not review

issues relating to the enhancements. With the exception of Gelin’s

Sixth Amendment challenge, we find the remaining issues to be

without merit.

            In accordance with Anders, we have reviewed the entire

record in this case for any other meritorious issue and have found

none.    Accordingly,   we   affirm   the   convictions   and   Philius’

sentence.    We vacate Gelin’s sentence and remand for proceedings

consistent with Hughes, 401 F.3d at 546 (citing Booker, 543 U.S. at

   , 125 S. Ct. at 764-65, 767).      We deny the motion to remand as

moot.   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




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