                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4146



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


CHARLES EDWARD HOOPER,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (CR-03-149)


Submitted:   June 10, 2005                 Decided:    July 19, 2005


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant.   Kasey Warner, United States Attorney, Michael H.
Spencer, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Charles   Edward       Hooper    pled   guilty    to   one   count   of

distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

(2000).      The   district   court    sentenced      him    under   the   federal

Sentencing    Guidelines      to    thirty    months’   imprisonment.         This

sentence was based, in part, on the district court’s attributing

certain drug quantities to Hooper that were not alleged in the

indictment.

             In his initial brief, Hooper challenged the district

court’s inclusion of three drug sales conducted by Douglas E.

Jackson as relevant conduct in determining Hooper’s sentence,

arguing that it was not supported by a preponderance of the

evidence.     Hooper filed a supplemental brief, citing Blakely v.

Washington, 124 S. Ct. 2531 (2004), asserting for the first time on

appeal that his sentence is unconstitutional.                In United States v.

Booker, 125 S. Ct. 738 (2005), the Supreme Court held that the

federal Sentencing Guidelines, under which courts were required to

impose sentencing enhancements based on facts found by the court by

a preponderance of the evidence, violated the Sixth Amendment

because of their mandatory nature.            Id. 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



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746 (Stevens, J., opinion of the Court); id. at 756-57 (Breyer, J.,

opinion of the Court).

           Although      Hooper    did   not   raise    this    Sixth   Amendment

challenge at sentencing, this court has held that a mandatory

enhancement     based    on   judicial     fact-finding        supported    by   a

preponderance    of     evidence    constitutes    plain       error    warranting

correction.     United States v. Hughes, 401 F.3d 540, 547-48 (4th

Cir. 2005) (citing United States v. Olano, 507 U.S. 725, 731-32

(1993)).   In light of Booker and Hughes, we find that the district

court plainly erred in sentencing Hooper.1             Because Hooper does not

challenge the validity of his conviction, we affirm his conviction,

vacate his sentence and remand for proceedings consistent with

Hughes.2   Id. at 546 (citing Booker, 125 S. Ct. at 764-65, 767

(Breyer, J., opinion of the Court)).                   We dispense with oral



     1
      Just as we noted in Hughes, 401 F.3d at 545 n. 4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Hooper’s sentencing.
     2
      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.
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)
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). Id. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.

                                     - 3 -
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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