                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4363



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JAMES ARDELL CANADY,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-02-127)


Submitted:   May 31, 2005                  Decided:   July 13, 2005


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


William T. Peregoy, Wilmington, North Carolina, for Appellant.
Frank D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           After a trial ending in a mistrial, James Ardell Canady

pled guilty to participating in a conspiracy to possess with intent

to distribute and distribute more than 50 grams of crack cocaine,

21 U.S.C. § 846 (2000) (Count One); possession of more than 5 grams

of crack with intent to distribute, 21 U.S.C. § 841 (2000) (Counts

Two and Four); and using or carrying a firearm during a drug

offense, 18 U.S.C. § 924(c) (2000) (Count Three).             The district

court departed downward based on Canady’s substantial assistance,

U.S.   Sentencing   Guidelines   Manual   §   5K1.1,   p.s.   (2003),   and

sentenced him to a term of 300 months imprisonment on Counts One,

Two, and Four, and a consecutive five-year term on Count Three.

Canady appeals his sentence.     Citing Blakely v. Washington, 124 S.

Ct. 2531 (2004), Canady argues for the first time on appeal that

his sentence is unconstitutional.         He also contends that the

district court clearly erred in determining that he was a leader or

organizer and in denying him an adjustment for acceptance of

responsibility. Canady does not challenge his conviction. For the

reasons explained below, we affirm the conviction, but vacate the

sentence and remand for resentencing.

           Because Canady did not rely on Blakely in the district

court, we review for plain error.     Fed. R. Crim. P. 52(b); United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).            In United

States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held

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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 making

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

J.); 756-57 (Breyer, J.). Subsequently, in Hughes, this court held

that a sentence that was imposed under the pre-Booker mandatory

sentencing scheme and was 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 sentence “exceeded the maximum allowed based on the facts

found by the jury alone” and the record does not disclose what

discretionary sentence the district court would have imposed under

an advisory guideline scheme.        Hughes, 401 F.3d at 546-47, 556.

           Canady’s    offense     level    was   increased    based    on   the

quantity of crack involved and because the court found that he was

a leader in the offense.           His guilty plea established that he

conspired to distribute more than fifty grams of crack and, at

sentencing, he conceded that there was evidence to support the

recommended base offense level of 38.             USSG § 2D1.1(c)(1) (more

than 1.5 kilograms of crack).        Because Canady did not contest the

amount of crack on which the base offense level was calculated, the


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base offense level was not determined on facts found by the judge,

and no Sixth Amendment violation occurred.

          The court did make the factual finding that Canady was a

leader or organizer in the conspiracy. Although Canady contends on

appeal that the district court’s finding was clearly erroneous, the

district court had before it information indicating that thirteen

named individuals sold drugs for Canady in a charged conspiracy

that lasted from 1991 to 2002.    An agent from the North Carolina

State Bureau of Investigation testified at Canady’s sentencing

hearing that Canady supplied drugs to an open-air drug market in

Jacksonville, North Carolina, and was in a leadership position over

at least five people.   On this evidence, the district court did not

clearly err in finding that Canady had a leadership role.

          However, without the role adjustment, Canady’s offense

level would have been 38 rather than 42 and his guideline range

(with criminal history category III) would have been 292-365 months

rather than 360 months to life.         Thus, the maximum sentence

authorized by Canady’s admissions was 365 months. Hughes, 401 F.3d

at 547.   The 300-month sentence, which resulted in part from

judicial fact-finding and in part from a downward departure, was

within the guideline range authorized by the facts Canady admitted.

But had the court used a guideline range of 292-365 months and

departed by sixty months, the sentence would have been 232 months.




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           Under    Booker,      the     district    court’s     fact     finding

concerning Canady’s role constituted error, and the error is plain.

We conclude that the error was prejudicial because Canady’s 300-

month sentence for the drug counts was longer than it would have

been without the Sixth Amendment violation and thus his substantial

rights were affected.        Hughes, 401 F.3d at 548-49.          We therefore

exercise our discretion to notice the error, vacate the sentence,

and remand for resentencing consistent with Booker.*               Id. at 556.

           In a letter filed pursuant to Fed. R. App. P. 28(j),

Canady   argues    that    any   sentence      imposed   under   the    mandatory

guideline scheme should be vacated and remanded for resentencing.

A defendant making this claim must also show plain error, including

actual prejudice.         United States v. White, 405 F.3d 208, 223-25

(4th Cir. 2005). Canady cannot show prejudice because the district

court expressed no desire to impose a lesser sentence than the

mandatory guidelines permitted.           Id. at 224-25.

           With respect to the district court’s decision that Canady

was not entitled to an adjustment for acceptance of responsibility,

we conclude that the court did not clearly err.              United States v.

Ruhe, 191 F.3d 376, 388 (4th Cir. 1999) (standard of review); USSG


     *
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Canady’s sentencing. Hughes,
401 F.3d at 545 n.4. 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 -
§ 3E1.1, comment. (n.2) (2003) (defendant who puts the government

to its burden of proof at trial before pleading guilty usually is

not entitled to an adjustment for acceptance of responsibility).

            Accordingly, we vacate the sentence and remand the 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.”          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.A. 3553(a) (West 2000 & Supp. 2005),

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.A. 3553(c)(2). Id. The sentence

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

reasonable.” Id. 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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