                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4286



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MICHAEL L. STEVENS,

                                             Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-03-892)


Submitted:   November 28, 2005            Decided:   January 6, 2006


Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Strom Thurmond, Jr., United States Attorney,
Rhett DeHart, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Michael L. Stevens pled guilty, pursuant to a written

plea agreement, to distributing child pornography, in violation of

18 U.S.C. § 2252A(a)(2) (2000).                He was sentenced to 130 months of

imprisonment.        Citing Blakely v. Washington, 542 U.S. 296 (2004),

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

Stevens contends that his Sixth Amendment right to a jury trial was

violated because he was sentenced on facts found by the court and

not by the jury, and that the district court erred in applying

enhancements         under        U.S.      Sentencing          Guidelines      Manual

§ 2G2.2(b)(2)(B) and § 2G2.2(b)(3) (2002).                   For the reasons that

follow, we affirm Stevens’ conviction, but vacate his sentence and

remand for resentencing.

               Stevens did not raise a Sixth Amendment challenge to the

Guidelines below; we therefore review for plain error.                          United

States    v.    Hughes,     401    F.3d    540,     547    (4th   Cir.   2005).      To

demonstrate       plain    error,    Stevens        must    establish    that     error

occurred, that it was plain, and that it affected his substantial

rights.        Id.   at   547-48.         If    a   defendant     establishes     these

requirements, the court’s “discretion is appropriately exercised

only when failure to do so would result in a miscarriage of

justice, such as when the defendant is actually innocent or the

error     seriously       affects    the       fairness,    integrity     or    public




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reputation    of   judicial    proceedings.”        Id.   at   555   (internal

quotation marks and citation omitted).

            In Booker, the Supreme Court held that the mandatory

Guidelines scheme that provided for sentence enhancements based on

facts found by the court violated the Sixth Amendment. Booker, 125

S. Ct. at 746-48, 755-56.        The Court remedied the constitutional

violation by severing and excising the statutory provisions that

mandate sentencing and appellate review under the Guidelines, thus

making the Guidelines advisory.          Id. at 756-57.    Subsequently, in

Hughes, 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 admitted by the

defendant, constitutes plain error that affects the defendant’s

substantial rights and warrants reversal under Booker. Hughes, 401

F.3d at 546-56.

            Here, Stevens maintains that he did not admit to the

facts underlying the district court’s five-level enhancement under

USSG   §   2G2.2(b)(2)(B)     (offense   involved    distribution     for   the

receipt or expectation of receipt of a thing of value, but not for

pecuniary gain) and four-level enhancement under USSG § 2G2.2(b)(3)

(offense involved material that portrays sadistic or masochistic

conduct).    Therefore, he argues that the enhancements, found by a

preponderance of the evidence, violated his Sixth Amendment rights.

Because Stevens’ 130-month sentence exceeds the maximum authorized


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by the facts he admitted, we conclude that the district court

committed plain error in sentencing Stevens and that the error

requires resentencing.           Id. at 547.1

               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.A. § 3553(a) (West 2000 & Supp. 2005), and

then impose a sentence.           Id.      If that sentence falls outside the

Guidelines range, the court should explain its reasons for imposing

a non-Guidelines sentence, as required by 18 U.S.C.A. § 3553(c)(2)

(West 2000 & Supp. 2005).            Id.      The sentence must be “within the

statutorily prescribed range and . . . reasonable.”                        Id.

              Based on the foregoing, we affirm Stevens’ conviction and

vacate his sentence and remand for resentencing.2                 We dispense with

oral       argument    because    the    facts    and     legal   contentions           are


       1
      As we noted in Hughes, “We of course offer no criticism of
the district judge, who followed the law and procedure in effect at
the time” of Stevens’ sentencing. Hughes, 401 F.3d at 545 n.4.
       2
      Because we vacate Stevens’ sentence, it is unnecessary for us
to reach Stevens’ challenges to his Guidelines calculation.
Hughes, 401 F.3d at 556 n.15.

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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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