                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4981



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TIMOTHY DOWELL, SR.,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-04-65)


Submitted:   July 13, 2005                 Decided:   August 4, 2005


Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


G. Ernest Skaggs, SKAGGS & SKAGGS, Fayetteville, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Miller A. Bushong
III, Assistant United States Attorney, Beckley, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Timothy Dowell, Sr. was convicted of distribution of

cocaine base in violation of 21 U.S.C. § 841(a)(1) (2000).         Dowell

appeals, contending that the district court improperly sentenced

him when it attributed a drug quantity to him greater than found by

the jury.   Dowell does not challenge his conviction.      He preserved

the sentencing issue for appeal by raising it in the district

court.   We affirm Dowell’s conviction but vacate and remand for

resentencing.

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

Supreme Court concluded that the mandatory manner in which the

federal sentencing guidelines required courts to impose sentencing

enhancements based on facts found by the judge by a preponderance

of the evidence violated the Sixth Amendment.      Booker, 125 S. Ct.

at 746, 750.    In light of Booker, we vacate Dowell’s sentence and

remand   the   case   for   resentencing.*   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



     *
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Dowell’s sentencing.

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for that determination. See United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005) (applying Booker on plain error review).    The

court should consider this sentencing range along with the other

factors described in 18 U.S.C. § 3553(a) (2000), 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) (2000).   Id.   The sentence must

be “within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47.

            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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