                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4430



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus

CHARLES EDWARD HATTEN,
                                            Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (CR-02-232)


Submitted:   October 21, 2005          Decided:     November 22, 2005


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Matthew A. Victor, VICTOR, VICTOR & HELGOE, L.L.P., Charleston,
West Virginia, for Appellant.        Kasey Warner, United States
Attorney, Miller A. Bushong, III, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Following a guilty plea to conspiracy to manufacture and

distribute more than fifty grams of methamphetamine, in violation

of 21 U.S.C. § 846 (2000), and using, carrying, and discharging a

firearm in relation to a drug trafficking offense, in violation of

18 U.S.C.A. § 924(c)(1)(A)(iii), (j)(1) (West 2000 & Supp. 2005),

the district court sentenced Charles Edward Hatten to 520 months in

prison.     Hatten appeals, arguing that he should be permitted to

withdraw his guilty plea and challenging the validity of his

sentence.    We affirm Hatten’s conviction, vacate his sentence, and

remand for resentencing.

            Hatten contends that the government breached the plea

agreement by arguing for the application of the murder cross

reference    of   U.S.   Sentencing   Guidelines   Manual   §   2D1.1(d)(1)

(2003).     We agree with the district court’s conclusion that the

government did not breach the plea agreement.

            The parties are in apparent agreement that Hatten is

entitled to be resentenced in light of United States v. Hughes, 401
F.3d 540 (4th Cir. 2005). Accordingly, although we affirm Hatten’s

conviction, we vacate his sentence and remand for resentencing in

light of Hughes.*        Because we are vacating Hatten’s sentence, we

need not address Hatten’s other sentencing claims.




     *
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Hatten’s sentencing. 401 F.3d at 545
n.4.

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            Even though the Sentencing Guidelines are no longer

mandatory, United States v. Booker, 125 S. Ct. 738 (2005), makes

clear that a sentencing court must still “consult [the] Guidelines

and take them into account when sentencing.”        Id. 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

(applying Booker on plain error review). 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

imposing a non-Guidelines sentence as required by 18 U.S.C.A.

§ 3553(c)(2) (West Supp. 2005).   The sentence must be “within the

statutorily prescribed range and . . . reasonable.”      Hughes, 401

F.3d at 546-47.

            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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