                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5081



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


MARLIN ANDREW MARRS,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-03-289)


Submitted:   June 8, 2005                  Decided:   June 27, 2005


Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Jonathan David Byrne, Michael L. Desautels, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. John
Lanier File, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Marlin   Andrew   Marrs   pled   guilty   to   knowingly    and

intentionally distributing “a quantity” of cocaine base on March 6,

2002, in violation of 21 U.S.C. § 841(a)(1) (2000).                He was

sentenced to forty-six months of imprisonment.         At the sentencing

hearing, Marrs objected to the district court’s consideration of

certain relevant conduct in determining his sentence, arguing that

the holding in Blakely v. Washington, 124 S. Ct. 2531 (2004),

applied to the federal sentencing guidelines.          The district court

overruled his objection, relying on United States v. Hammoud, 378

F.3d 426 (4th Cir.) (order), opinion issued by 381 F.3d 316 (4th

Cir. 2004) (en banc), vacated, 125 S. Ct. 1051 (2005).         Marrs noted

an appeal.    The parties have now filed a joint motion to remand the

case for resentencing, citing United States v. Booker, 125 S. Ct.

738 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.

2005).

             In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentence enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

125 S. Ct. at 746, 750 (Stevens, J., opinion of the Court).             After

Booker, courts must calculate the appropriate guideline range,

consider the range in conjunction with other relevant factors under

the guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005),

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and impose a sentence.   If a court imposes a sentence outside the

guideline range, the court must state its reasons for doing so.

Hughes, 401 F.3d at 546.     This remedial scheme applies to any

sentence imposed under the mandatory guidelines, regardless of

whether the sentence violates the Sixth Amendment.       Id. at 547

(citing Booker, 125 S. Ct. at 769 (Breyer, J., opinion of the

Court)).

           We conclude that Marrs preserved the issue of whether his

sentence was imposed in violation of the Sixth Amendment.        We

further hold that the sentence did constitute such a violation, and

therefore, grant the parties’ joint motion to remand, vacate the

sentence, and remand for resentencing consistent with Booker.*

Following resentencing, the appeal shall be returned to this court

for further proceedings.

                                               VACATED AND REMANDED




     *
      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 Marrs’s sentencing.

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