                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4066



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


GRAHAM MCDOUGLAS REAMS, JR.,

                                            Defendant - Appellant.



Appeal from the United States District      Court for the Middle
District of North Carolina, at Durham.       James A. Beaty, Jr.,
District Judge. (CR-04-301)


Submitted:   April 12, 2006                  Decided:   May 1, 2006


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant.       Michael Augustus DeFranco,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Graham McDouglas Reams, Jr., pled guilty to possession of

a   firearm     by   a   convicted    felon,    in    violation   of    18   U.S.C.

§ 922(g)(1) (2000).         He was sentenced to seventy-four months in

prison.       He now appeals, arguing that his sentence violates the

Sixth Amendment under United States v. Booker, 543 U.S. 220 (2005).

We vacate the sentence and remand for resentencing.

              Prior to Reams’ arraignment, the parties filed somewhat

conflicting documents with the court.                 In Reams’ “Acceptance of

Responsibility,” he admitted to being a convicted felon and to

having    a    pistol    with   him   when     his    vehicle   was    stopped   on

February 29, 2004.        Reams stated that he made no other admissions

regarding the offense. According to a “Factual Basis” filed by the

United States, Reams was arrested following a traffic stop on

February 29.         The arresting officer detected a strong smell of

marijuana in Reams’ vehicle and noticed a plastic sandwich bag

inside the driver’s side door handle.                The officer retrieved that

bag and a second bag, each of which appeared to the officer to

contain crack cocaine.           Reams was arrested.            Incident to the

arrest, the officer recovered a handgun from Reams’ person.                   Reams

indicated to officers that the bags should contain two and one-half

grams of crack.          Only attorneys for the Government signed the

Factual Basis.




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               The court accepted Reams’ guilty plea.             Because Reams

possessed the firearm in connection with the commission of another

offense, the probation officer applied the cross reference set

forth at U.S. Sentencing Guidelines § 2K2.1(c)(1) (2003).                      The

probation officer determined that the amount of crack constituting

relevant conduct was six grams--the 2.5 grams referenced in the

Factual Basis and another 3.5 grams discovered on Reams’ person

during a March 29, 2004 traffic stop.1               The base offense level was

26, see USSG § 2D1.1(c)(7).              Two levels were added because Reams

possessed a firearm in connection with the offense, see USSG

§ 2D1.1(b)(1), for an adjusted offense level of 28.                Three levels

were       subtracted    for     acceptance     of   responsibility,   see   USSG

§ 3E1.1(b).        His total offense level was 25.              Reams’ criminal

history category was III.           His guideline range therefore was 70-87

months.        The court sentenced Reams to seventy-four months in

prison.

               Reams    argues    that    his    sentence   violates   the   Sixth

Amendment under United States v. Booker, 543 U.S. 220 (2005).                   He

contends that the district court erroneously applied the cross

reference based on the fact that he had possessed crack.                     Reams


       1
      Count Two of the indictment charged Reams with being a felon
in possession of a firearm March 29, 2004.       According to the
presentence report, officers discovered Reams in possession of a
firearm and 3.5 grams of crack on that date.         Count Two was
dismissed as part of the plea agreement, but the probation officer
included the weight of the crack from both February 29 and March 29
when determining relevant conduct.

                                         - 3 -
states that this fact was neither charged in the indictment nor

admitted by him.     The United States agrees that there was a Booker

error and that we must vacate Reams’ sentence and remand for

resentencing. Because Reams preserved this issue, our review is de

novo.    See United States v. Mackins, 315 F.3d 399, 405 (4th Cir.

2003).

           The transcript of the guilty plea proceeding has not been

made part of the record on appeal.            Assuming that Reams correctly

states   that   he   has   never    admitted      possessing   crack   with   the

firearm, the cross reference should not have been applied. Without

the enhancement, Reams’ adjusted offense level would have been 14,

and his guideline range would have been 21-27 months in prison.

Because his seventy-four-month sentence exceeds the maximum penalty

authorized by the admitted facts, there was a Sixth Amendment

violation requiring resentencing.           See United States v. Evans, 416

F.3d 298, 300 (4th Cir. 2005).2

           We   accordingly        vacate   the    sentence    and   remand   for

resentencing. We dispense with oral argument because the facts and


     2
      If Reams agreed at the guilty plea proceeding that he
possessed 2.5 grams of crack in connection with the firearm
offense, as the Government states in the Factual Basis, and the
cross reference applied, resentencing also would be required. His
base offense level in that case would be 20, see USSG
§ 2D1.1(c)(10), and two levels would be added for possession of a
firearm, see USSG § 2D1.1(b)(1), for an adjusted offense level of
22. The guideline range for offense level 22, criminal history
category III, is 51-63 months. Under Evans, Reams’ seventy-four-
month sentence violates the Sixth Amendment, and resentencing would
be required.

                                      - 4 -
legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                             VACATED AND REMANDED




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