                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4292



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TENNYSON HARRIS, a/k/a Mark T, a/k/a Teddy,

                                              Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-7536)


Submitted:   October 14, 2005          Decided:     December 29, 2005


Before KING, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Timothy S. Mitchell, LAW OFFICE OF TIMOTHY S. MITCHELL, Greenbelt,
Maryland, for Appellant.      Rod J. Rosenstein, United States
Attorney, Mythili Raman, Steven M. Dunne, Assistant United States
Attorneys, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            This case is before us on remand from the United States

Supreme    Court    for   further      consideration    in    light    of   United

States v. Booker, 125 S. Ct. 738 (2005).             In our prior opinion, we

affirmed Harris’s conviction and 360-month sentence imposed after

a jury convicted him of conspiracy to distribute and possess with

intent to distribute 1000 kilograms or more of marijuana, in

violation of 21 U.S.C. § 846 (2000).             United States v. Harris, No.

03-4292, 2004 WL 1895199 (4th Cir. Aug. 25, 2004) (unpublished),

vacated, 125 S. Ct. 1087 (2005).            After reviewing Harris’s appeal

in light of Booker, we affirm his conviction for the reasons stated

in   our   prior    opinion,     vacate    his    sentence,    and    remand   for

resentencing.

            Harris asserts that his Sixth Amendment rights were

violated because the district court enhanced his offense level

based upon facts not alleged in the indictment or found by the

jury.      He argues that this error should be reviewed under a

harmless error standard because he objected to the enhancements at

sentencing and cited Apprendi v. New Jersey, 530 U.S. 466 (2000),

in his objections.        Harris also asserts that he is entitled to be

resentenced even if his sentence is reviewed under a plain error

standard.        The Government responds that because Harris did not

assert a Sixth Amendment objection to the enhancements, but rather

argued     the     sufficiency    of      the    evidence     supporting     those


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enhancements, this court should review his sentence under a plain

error standard.   The Government also concedes that Harris is

entitled to be resentenced pursuant to this court’s decision in

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

review of Harris’s written objections to the presentence report

and the sentencing transcript support the Government’s assertion

that plain error review is appropriate, as Harris did not assert

objections based upon the Sixth Amendment, but argued that the

facts supporting the drug quantity and enhancements to his offense

level had not been sufficiently established at trial.

          Harris argues that the drug quantity attributed to him

for sentencing should have been limited to the 1000 kilograms or

more of marijuana charged in the indictment and found by the jury,

which would result in a base offense level of 32,1 and that the

other enhancements should not be applied because they were not

found by the jury or admitted by him.   To demonstrate plain error,

Harris must establish that error occurred, that it was plain, and

that it affected his substantial rights.     Id. at 547-48.   If a

defendant satisfies 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



     1
      See U.S. Sentencing Guidelines Manual (USSG) § 2D1.1(c)(4)
(2001).

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public 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   severing    two

statutory provisions and thereby making the guidelines advisory.

Id. at 756-67 (Breyer, 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), and

impose a sentence.      If a district court imposes a sentence outside

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

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.

             Here, the district court sentenced Harris under the

mandatory federal sentencing guidelines and established a base

offense   level    of   thirty-four   by   determining   that    Harris   was

responsible for more than 3000 kilograms but less than 10,000

kilograms of marijuana.        The court also enhanced Harris’s base

offense level by two levels for possession of a dangerous weapon,


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and by four levels for a leadership role, yielding a total offense

level of forty.    The resulting guideline range for a criminal

history category of IV was 360 months to life imprisonment.      The

district court sentenced Harris to 360 months of imprisonment--the

bottom of the guideline range.

          Using only the amount of drugs found by the jury (more

than 1000 kilograms of marijuana) and without the enhancements for

possession of a weapon and leadership role, Harris’s offense level

would have been thirty-two.       See USSG § 2D1.1(c)(4).   With a

criminal history category of IV, Harris’s guideline range would

have been 168 to 210 months of imprisonment.     USSG Ch. 5, Pt. A

(Sentencing Table). Because the Government filed a notice of prior

felony drug conviction pursuant to 21 U.S.C. § 851 (2000), however,

Harris was subject to a mandatory minimum of twenty years of

imprisonment, so the guideline range becomes 240 months.        USSG

§ 5G1.1(b).   The 360-month sentence Harris received is longer than

the maximum of 240 months the district court could have imposed

based solely on the facts found by the jury.   See Hughes, 401 F.3d

at 548.   We conclude that the district court’s plain error in

sentencing Harris based upon facts found by the court and not the

jury affects his substantial rights and warrants correction.2



     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 Harris’s sentencing. Hughes, 401 F.3d at
545 n.4.

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          Accordingly, we affirm Harris’s conviction, but vacate

his sentence and remand for resentencing.    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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