                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-4687



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


PAUL LEE JACKSON,

                                             Defendant - Appellant.


         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-8238)


Submitted:   September 28, 2005         Decided:     November 22, 2005


Before MOTZ, KING, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


William Cipriani, CIPRIANI & PAULL, L.C., Wellsburg, West Virginia,
for Appellant. Thomas E. Johnston, United States Attorney, Thomas
O. Mucklow, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Paul Lee Jackson pled guilty to one count of conspiracy

to possess with intent to distribute in excess of fifty grams of

crack and two counts of distribution of crack in violation of 21

U.S.C. §§ 841(a)(1) and 846 (2000).      He was sentenced to 240 months

in prison and five years of supervised release.        We affirmed his

conviction and sentence.    United States v. Jackson, No. 03-4687,

2004 WL 2165640 (4th Cir. Sept. 16, 2004) (unpublished).

           Jackson filed a petition for a writ of certiorari in the

United States Supreme Court.     His petition was granted, and this

court’s judgment was vacated, in light of the decision in United

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

125 S. Ct. 1419 (2005).    Jackson’s case has been remanded to this

Court for further proceedings.

           Jackson’s sentence was imposed prior to the decisions in

Booker and its predecessor, Blakely v. Washington, 542 U.S. 296

(2004).   Jackson did not raise objections to his sentence based on

the mandatory nature of the sentencing guidelines or the district

court’s application of sentencing enhancements based on facts not

admitted by Jackson or found by a jury beyond a reasonable doubt.

Therefore, we review his sentence for plain error.          See United

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

           In Booker, the Supreme Court applied the rationale of

Blakely to the federal sentencing guidelines and held that the


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mandatory guidelines scheme that provided for sentence enhancements

based on facts found by the court by a preponderance of the

evidence violated the Sixth Amendment.   Booker, 125 S. Ct. at 746-

48, 755-56 (Stevens, J., opinion of the Court). The Court remedied

the constitutional violation by severing two statutory provisions,

18 U.S.C.A. § 3553(b)(1) (West Supp. 2004) (requiring sentencing

courts to impose a sentence within the applicable guidelines

range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2004) (setting

forth appellate standards of review for guideline issues), thereby

making the guidelines advisory.   Hughes, 401 F.3d at 546 (citing

Booker, 125 S. Ct. at 757, 764 (Breyer, J., opinion of the Court)).

          We conclude that the determination that Jackson was

responsible for a drug quantity of at least 150 grams but less than

500 grams of cocaine base was error under the Sixth Amendment as

applied in Booker, because the facts supporting this enhancement

were not alleged in the indictment or admitted by Jackson.*   Based

on the facts present in the indictment, Jackson was responsible for

in excess of fifty grams of cocaine base, resulting in a total

offense level of thirty-two, instead of the level thirty-four used

by the district court.   Together with a criminal history category


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

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of V, Jackson’s guideline range would be 188 to 235 months of

imprisonment. Because the 240-month sentence imposed does not fall

within   the   guidelines   range    calculated   without   the   improper

enhancement,    Jackson’s   sentence    constitutes   plain   error   that

affects his substantial rights and requires resentencing pursuant

to Booker and Hughes.

           We therefore vacate Jackson’s sentence and remand for

resentencing consistent with Booker and its progeny.          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.



                                                   VACATED AND REMANDED




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