                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 02-4928


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ROBERT JARED SMITH, a/k/a J Dog,

                  Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 08-8197)


Submitted:    November 30, 2009            Decided:   December 18, 2009


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Barron Michael Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston,
West Virginia, for Appellant.        Monica Kaminski Schwartz,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           In    2000,     a    jury       convicted      Robert       Jared    Smith     of

conspiracy to distribute fifty grams or more of cocaine base, in

violation of 21 U.S.C. § 846 (2006), and aiding and abetting

possession with intent to distribute cocaine base, in violation

of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2 (2006).                                The

district     court    sentenced        Smith      to    life     in    prison     on     the

conspiracy count and a concurrent twenty-year prison term on the

possession    with     intent    to    distribute        count.         On     appeal,   we

affirmed   Smith’s       convictions,           but    vacated    his     sentence       and

remanded for resentencing on the ground that the district court

abused its discretion by applying a leadership role enhancement

pursuant to U.S. Sentencing Guidelines Manual § 3B1.1 (1999).

United States v. Sayles, 296 F.3d 219, 227 (4th Cir. 2002).

           Following      a     hearing,         the    district       court    sustained

Smith’s    objections      to    the       leadership      role       enhancement        and

resentenced     him    without       the    four-level         increase      under      USSG

§ 3B1.1.      Thus, his offense level was reduced from 42 to 38.

Based on an offense level of 38 and criminal history category

IV, Smith’s guidelines range on the conspiracy count was 324 to

405 months in prison.           The court sentenced him to 405 months on

the   conspiracy      count    and    to    a    concurrent      240    months     on    the

possession with intent to distribute count.                      Smith appealed, and



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we affirmed.      United States v. Smith, 98 F. App’x 962 (4th Cir.

2004) (No. 02-4928).

            Smith subsequently filed a 28 U.S.C.A. § 2255 (West

Supp. 2009) motion, which the district court denied.              One of the

issues that arose during Smith’s § 2255 proceedings concerned

appellate    counsel’s   failure   to   file   a    petition    for   writ    of

certiorari as requested in United States v. Smith, 98 F. App’x

962 (4th Cir. 2004).      We construed Smith’s § 2255            motion as a

motion to recall the mandate in Smith, 98 F. App’x 962, recalled

the mandate, and reentered the judgment to permit Smith to file

a timely petition for certiorari to the United States Supreme

Court.     United States v. Smith, 321 F. App’x 229 (4th Cir. 2008)

(No. 07-6358).      The Supreme Court subsequently granted Smith’s

petition    for   certiorari,   vacated   this     court’s     judgment,     and

remanded his case for further proceedings in light of United

States v. Booker, 543 U.S. 220 (2005).             Smith v. United States,

129 S. Ct. 2763 (2009).

            In light of the vast changes in the legal landscape

that have occurred in the seven years since the district court

resentenced Smith, we vacate Smith’s sentence and remand for

resentencing in light of Booker and its progeny.                 We dispense

with oral argument because the facts and legal contentions are




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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.



                                                  VACATED AND REMANDED




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