                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-5003



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ANTONIO LUIS DIAZ-RODRIQUEZ, a/k/a Bordy,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:03-cr-70006-SGW-5)


Submitted:   March 28, 2007                  Decided:   May 8, 2007


Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Larry W. Shelton, Randy V. Cargill, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. John L. Brownlee,
United States Attorney, William F. Gould, Assistant United States
Attorney,   Adam   B.    Schwartz,   Third   Year   Practitioner,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Antonio Luis Diaz-Rodriquez pled guilty to conspiracy to

possess with intent to distribute 50 grams or more of cocaine base

(crack), 21 U.S.C. § 846 (2000), and was sentenced in June 2004 to

235 months imprisonment.                  He did not appeal the judgment, but

subsequently filed a motion to vacate under 28 U.S.C. § 2255

(2000), alleging that he had asked his attorney to file an appeal.

After an evidentiary hearing, the district court granted relief

under § 2255, vacated the judgment, entered a new judgment, and

noted an appeal on Diaz-Rodriquez’ behalf.                   See United States v.

Peak, 992 F.2d 39, 42 (4th Cir. 1993) (holding that counsel’s

failure to file a notice of appeal when requested to do so is per

se ineffective assistance).                Diaz-Rodriquez now claims on appeal

that his Sixth Amendment right to effective assistance of counsel

was violated when his prior attorney withdrew his objections to the

presentence          report   at    the    sentencing   hearing    and   that     Sixth

Amendment error occurred under United States v. Booker, 543 U.S.

220 (2005), when his sentence was increased based on facts that

were       neither    charged      in   the    indictment   nor   admitted   by   him.

Finding merit in his second claim, we vacate the sentence and

remand for resentencing consistent with Booker.1


       1
      We note that Diaz-Rodriquez waived his right to appeal the
sentence in his plea agreement. Because the government has not
asserted the waiver as a bar to this appeal, we will not treat it
as such.   United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005).

                                              - 2 -
             Diaz-Rodriquez     was      sentenced     before       Blakely      v.

Washington, 542 U.S. 296 (2004), and Booker were decided.                  Because

the claims he raises here were not raised in the district court,

our review is for plain error.           United States v. Olano, 507 U.S.

725, 732-37 (1993) (discussing standard); United States v. Hughes,

401 F.3d 540, 547-48 (4th Cir. 2005) (same).

           At the sentencing hearing, counsel for Diaz-Rodriquez

withdrew the objections he had filed contesting the drug quantity

attributed     to   his   client   and     the     manager   role       adjustment

recommended in the presentence report. Diaz-Rodriquez informed the

court that he agreed that the objections should be withdrawn.

After Diaz-Rodriquez filed his § 2255 motion, the only issue

addressed by the district court was whether the attorney was

ineffective in failing to consult with Diaz-Rodriquez about an

appeal following his sentencing.          The attorney’s testimony at the

evidentiary hearing did not reveal his reason for deciding to

withdraw the objections to the presentence report; indeed, he was

unable to explain what his reasons might have been.                 However, the

district court did not decide whether the attorney was ineffective

in   withdrawing    the   objections.         To   succeed   in     a    claim   of

ineffective assistance on direct appeal, a defendant must show

conclusively from the face of the record that counsel provided

ineffective representation.        United States v. James, 337 F.3d 387,

391 (4th Cir. 2003).          Even though, in this case, we have the


                                      - 3 -
benefit of the attorney’s testimony about his conduct at the

sentencing hearing, we cannot say conclusively that counsel was

ineffective in withdrawing the objections.               Therefore, this claim

fails.

                 As the government concedes, Diaz-Rodriquez’ second Sixth

Amendment claim has merit. Even though Diaz-Rodriquez withdrew his

objections to the guideline calculation, his silence did not

constitute an admission, for Booker purposes, of the facts set out

in the presentence report.          United States v. Milam, 443 F.3d 382,

387 (4th Cir. 2006); see also United States v. Revels, 455 F.3d

448,       450   (4th   Cir.),   cert.   denied,   127    S.   Ct.    299   (2006).

Diaz-Rodriquez admitted only that he conspired to distribute fifty

grams of crack, as charged in the indictment, but he was held

responsible for 1.5 kilograms of crack. His base offense level was

thus increased from 32 to 38.             Another two levels were added for

having a managerial role, which he did not admit.                    Without these

enhancements, the guideline range would have been 121-151 months.2

Diaz-Rodriquez’         235-month   sentence     thus    exceeded     the   maximum

permissible, under a mandatory guideline scheme, based on facts he

admitted.




       2
      This calculation does not take into account the three-level
adjustment for acceptance of responsibility that Diaz-Rodriquez
received. United States v. Evans, 416 F.3d 298, 299 n.4 (4th Cir.
2005).

                                         - 4 -
            Because Diaz-Rodriquez has established plain error that

affected his substantial rights, we vacate his sentence and remand

this case for resentencing consistent with Booker and Hughes.

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.”             543 U.S.

at 264.   On remand, the district court should first determine the

appropriate sentencing range under the guidelines.             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. 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. § 3553(c)(2).         Id. at 546.     The

sentence must be “within the statutorily prescribed range and ...

reasonable.”   Id. at 547.3   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.

                                                      VACATED AND REMANDED




     3
      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 Diaz-Rodriquez’
sentencing. See generally Johnson v. United States, 520 U.S. 461,
468 (1997) (stating that an error is ‘plain’ if “the law at the
time of trial was settled and clearly contrary to the law at the
time of appeal”).

                                   - 5 -
