                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4371



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RAKIMB SHERIF DENNIS,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-303)


Submitted:   June 3, 2005                  Decided:   July 13, 2005


Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


James Edward Quander, Jr., JAMES E. QUANDER, Winston-Salem, North
Carolina, for Appellant. Paul Alexander Weinman, Assistant United
States Attorney, Angela Hewlett Miller, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Following    a   jury    trial,    Rakimb   Sherif   Dennis   was

convicted of conspiracy to distribute cocaine base (crack), in

violation of 21 U.S.C. §§         846, 841(b)(1)(a) (2000), carrying a

firearm during a drug trafficking offense, in violation of 18

U.S.C. § 924(c)(1)(A)(i) (2000), and possession of a firearm by a

person previously convicted of a felony, in violation of 18 U.S.C.

§§ 922(g)(1), 924(a)(2) (2000).            The district court sentenced

Dennis under the federal sentencing guidelines to 235 months

incarceration on the § 846 conviction, a concurrent 120 months on

the § 922(g)(1) conviction, and a consecutive 60 months in prison

for the § 924(c)(1) offense.           Dennis’ counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

there were no meritorious issues for appeal, but challenging the

sufficiency of the evidence to support the jury’s verdict on the

conspiracy charge.    Although advised of his right to do so, Dennis

has not filed a pro se supplemental brief.             In a supplemental

brief, counsel contends that Dennis’ sentence is unconstitutional

in light of the Supreme Court’s decision in United States v.

Booker, 125 S. Ct. 738 (2005).        For the reasons that follow, we

affirm Dennis’ convictions, but vacate his sentence and remand for

resentencing.

          Dennis first contends that the evidence was insufficient

to prove the existence of a conspiracy to distribute crack, rather


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than a mere buyer-seller arrangement.               “The verdict of a jury must

be sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.”                 Glasser v. United

States, 315 U.S. 60, 80 (1942).

              Viewed in the light most favorable to the government, the

evidence at trial showed that Timothy Quattlebaum and Roscoe

Anderson would drive Dennis to various locations around Winston-

Salem so that Dennis could distribute crack cocaine.                     Dennis paid

them in cash or drugs.          Anderson and Quattlebaum each drove Dennis

to Greensboro on two separate occasions so that he could obtain

cocaine powder, which he then cooked into crack.                         Quattlebaum

testified     regarding    one    occasion     on   which   he    and    two   others

accompanied Dennis into a fast food restaurant where Dennis had

made plans to conduct a crack cocaine transaction.                      Once inside,

Dennis   stated    that    it    was   a   “setup”    and   the    four    left    the

restaurant.      Evidence was also presented that Dennis, with the

assistance of others, would sell crack from a residence in Winston-

Salem.   We find that this evidence was sufficient for the jury to

find   that    Dennis     knowingly    and     voluntarily       entered    into    an

agreement with one or more persons to distribute crack cocaine.

See Glasser, 315 U.S. at 80; United States v. Burgos, 94 F.3d 849,

857 (4th Cir. 1996).

              Dennis argued that the evidence supported merely a buyer-

seller relationship.        However, the jury was properly instructed as


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to the elements necessary to prove a conspiracy and also was

instructed that a mere buyer-seller relationship was not sufficient

to prove a conspiracy.      The jury returned a verdict finding that a

conspiracy existed.        Because there was sufficient evidence to

support that finding, we affirm the district court’s denial of

Dennis’   motion   for   judgment   of    acquittal    and   affirm   Dennis’

conviction.    See   Glasser,    315     U.S.   at   80;   United   States   v.

Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (holding that credibility

determinations are within the sole province of the jury).

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

Dennis argues on appeal that his sentence is unconstitutional

because it was enhanced based on the district court’s finding that

he was a leader or organizer of the offense, a fact that was

neither charged in the indictment nor found by the jury beyond a

reasonable doubt.        In Booker, the Supreme Court held that the

federal sentencing guidelines’ mandatory scheme—which provided for

sentencing enhancements based on facts found by the court—violated

the Sixth Amendment.        Id. at 746 (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 756-57 (Breyer, J., opinion of

the Court).   In United States v. Hughes, 401 F.3d 540 (4th Cir.

2005), this court held that a sentence enhanced based on facts


                                    - 4 -
found by the court, rather than upon facts found by the jury or

admitted by the defendant, constitutes plain error that affects the

defendant’s substantial rights and warrants reversal.     Id. at 547-

48 (citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).

           In light of Booker and Hughes, we find that the district

court plainly erred in imposing a sentence under the federal

sentencing guidelines as they existed prior to Booker.1 Therefore,

although we affirm Dennis’ convictions, we vacate his sentence and

remand for proceedings consistent with Hughes.2    Id. at 546 (citing

Booker, 125 S. Ct. at 764-65, 767 (Breyer, J., opinion of the

Court)).   We dispense with   oral   argument   because the facts and




     1
      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 Dennis’ 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”).
     2
      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.” 125
S. Ct. 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.
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. 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. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.

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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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