                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4459



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


FREEDOM BORN DIVINE, a/k/a Rico Rivers,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (CR-03-606)


Submitted:   April 22, 2005                 Decided:   May 25, 2005


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


Louis H. Lang, CALLISON TIGHE   & ROBINSON, L.L.P., Columbia, South
Carolina, for Appellant. J.     Strom Thurmond, Jr., United States
Attorney, Stacey D. Haynes,     Assistant United States Attorney,
Columbia, South Carolina, for   Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Freedom Born Divine was convicted in December 2003 of

possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1)

(2000), and sentenced to the statutory maximum term of 120 months

imprisonment.    Divine appeals his sentence, contending that under

Blakely v. Washington, 124 S. Ct. 2531 (2004), the district court

erred by refusing to submit to the jury a special verdict form on

the number of firearms he possessed and by increasing his offense

level for use or possession of a firearm in connection with another

felony.    At the sentencing hearing, the court determined that

Divine possessed at least three firearms, which resulted in a two-

level enhancement pursuant to U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(1)(A) (2003). The court also determined that Divine had

possessed the firearms in connection with marijuana distribution,

resulting in a four-level enhancement under § 2K2.1(b)(5). For the

reasons explained below, we affirm Divine’s conviction but vacate

the sentence and remand for resentencing.

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

Supreme Court held that Blakely applies to the federal sentencing

guidelines and that the mandatory guidelines scheme which provides

for   sentence   enhancements   based   on   facts   found   by   the   court

violated the Sixth Amendment; the Court remedied the constitutional

violation by severing and excising the statutory provisions that

mandate sentencing and appellate review under the guidelines, thus


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making the guidelines advisory.      125 S. Ct. at 746-48, 755-56

(Stevens, J., opinion of the Court); 756-57 (Breyer, J., opinion of

the Court). Subsequently, in United States v. Hughes, 401 F.3d 540

(4th Cir. 2005), this court held that a sentence that is enhanced

based on facts found by the court, not by a jury, constitutes plain

error that affects the defendant’s substantial rights and warrants

reversal under Booker when the record does not disclose what

discretionary sentence the district court would have imposed under

an advisory guideline scheme.    Hughes, 401 F.3d at 546-56.

           Divine received sentence enhancements for the number of

firearms he possessed and for possessing firearms in connection

with marijuana trafficking. The jury’s general verdict established

only that Divine possessed at least one firearm; however, the

district court determined that Divine possessed at least three

firearms and that a two-level increase under § 2K2.1(b)(2)(A) was

warranted, as recommended by the probation officer. The court also

determined that Divine possessed the firearms in connection with

marijuana trafficking, which resulted in an additional four-level

enhancement under § 2K2.1(b)(5).         Without these enhancements,

Divine’s offense level would have been 24 rather than 30 and his

guideline range would have been 77-96 months rather than 120

months.   The maximum sentence authorized by the jury verdict alone

was 96 months.   Id. at 547.    Because Divine’s sentence was longer

as a result of the Sixth Amendment violation, we conclude that his


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substantial rights were affected. Id. at 548-49. Finally, because

the district court did not indicate what sentence it would impose

under an advisory guideline scheme, we exercise our discretion to

notice the error.      Id. at 556.

           In light of Booker and Hughes, we vacate the sentence and

remand the case for resentencing consistent with Booker and Hughes.

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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