                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4447



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


THOMAS LAMONT WATSON,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-03-216)


Submitted:   May 25, 2005                  Decided:   June 30, 2005


Before WILKINSON, WILLIAMS, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Frank W. Dunham, Jr., Federal Public Defender, Michael S.
Nachmanoff, Assistant Federal Public Defender, Frances H. Pratt,
Research and Writing Attorney, Alexandria, Virginia, for Appellant.
Paul J. McNulty, United States Attorney, Michael J. Elston,
Charles E. James, Jr., Assistant United States Attorneys, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Following   a   jury     trial,   Thomas   Lamont    Watson    was

convicted on one count of conspiracy to distribute controlled

substances, in violation of 21 U.S.C. §§ 841 and 846 (2000), and

two counts of using a communication facility in the commission of

a felony and aiding and abetting such conduct, in violation of 21

U.S.C. § 843(b) (2000) and 18 U.S.C. § 2 (2000).               The district

court sentenced Watson under the Federal Sentencing Guidelines to

135 months in prison.      Citing Blakely v. Washington, 124 S. Ct.

2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005),

Watson asserts that his sentence is unconstitutional.            We    affirm

Watson’s   conviction,     vacate    his     sentence,   and   remand     for

resentencing.

           Watson contends that his sentence is unconstitutional in

light of Blakely.      Because he did not raise this issue in the

district court, his claim is reviewed for plain error.                Fed. R.

Crim. P. 52(b); United States v. Hughes, 401 F.3d 540, 547 (4th

Cir. 2005). To demonstrate plain error, a defendant must establish

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

substantial rights.    Id. at 547-48.        If the defendant establishes

these requirements, the court may exercise its discretion to notice

the error “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

manner in which the Federal Sentencing Guidelines required courts

to impose sentencing 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).                          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 746 (Stevens, J., opinion

of the Court); id. at 756-67 (Breyer, J., opinion of the Court).

             Here, the district court sentenced Watson under the

mandatory Federal Sentencing Guidelines and sentenced him based on

drug    quantities     found     by    a    preponderance       of    the   evidence.

Specifically, the jury found that Watson was responsible for five

to forty-nine grams of crack cocaine and less than five hundred

grams   of   powder    cocaine,       but    did   not   make   specific     findings

regarding the precise drug quantities within these ranges.                          The

court then attributed to Watson “49 grams” of crack cocaine and

“500 grams” of powder cocaine.               (J.A. 524).        This resulted in a

base offense level of 32.             See U.S. Sentencing Guidelines Manual

§   2D1.1(a)(3),      (c)(4)    (2003).        Because    the    jury     verdict   had

attributed “less than” five hundred grams to Watson, the five

hundred grams of powder cocaine quantity attributed to him in the


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Presentence Report (“PSR”) and adopted by the district court at

sentencing was outside the range authorized by the jury verdict.

Furthermore,         this    seemingly    small     difference    is   significant,

because five hundred grams represents the demarcation line between

quantities carrying different base offense levels for sentencing

purposes.1         See USSG § 2D1.1(c)(7), (8).         Finally, the wide range

of drug quantity lumped together by the verdict form encompassed

several smaller quantity ranges, which are assigned increasingly

high       base    offense    levels     by   the   Guidelines.        See   USSG   §

2D1.1(c)(8)-(14).           As a result, in light of Booker and Hughes, we

find that the district court plainly erred in sentencing Watson and

the error warrants correction.2               We therefore vacate the sentence

and remand to the district court for resentencing.3

                  For the reasons stated, although we affirm Watson’s

convictions, we vacate his sentence and remand for resentencing


       1
       The PSR converted these drug quantities into a single
aggregate marihuana quantity, as the Guidelines direct. See USSG
§ 2D1.1, comment. (n.10). Because the conversion calculations are
not included in the PSR, it is unclear whether “five hundred grams”
or “less than five hundred grams” was actually used in making those
calculations.   The PSR, however, unambiguously purported to use
“500 grams.” (J.A. 524).
       2
       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 Watson’s sentencing. 401 F.3d at 545
n.4.
       3
       Watson also asserts that the district court erroneously
calculated his criminal history score by assessing three points for
two prior drug convictions. Because we remand on other grounds, we
need not reach this contention.

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consistent with Booker and Hughes.4     We deny as moot Watson’s

motion to place his appeal in abeyance pending the decision in

Booker. 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




     4
       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) (West 2000 &
Supp. 2005).    Hughes, 401 F.3d at 546.     The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.

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