                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4358



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DAVIDE HUDSON,

                                            Defendant - Appellant.


     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-8189)


Submitted:   May 15, 2006                  Decided:   July 14, 2006


Before MOTZ, TRAXLER, and KING, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Patricia A. Kurelac, KURELAC LAW OFFICES, Moundsville, West
Virginia, for Appellant. Charles T. Miller, Acting United States
Attorney, Stephanie L. Haines, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          On May 18, 2004, we affirmed Davide Hudson’s convictions

and sentence.       See United States v. Hudson, No. 03-4358, 2004 WL

1093949 (4th Cir. May 18, 2004) (unpublished).                  On February 28,

2005, the Supreme Court of the United States granted Hudson’s

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

remanded for further consideration in light of United States v.

Booker, 543 U.S. 220 (2005). We affirm Hudson’s conviction for the

reasons stated in our prior opinion.             We vacate his sentence and

remand for resentencing.

          In    Booker,      the    Supreme   Court    held    that    Blakely   v.

Washington, 542 U.S. 296 (2004), applied to the federal sentencing

guidelines    and    the    mandatory   manner    in   which     the   guidelines

required courts to impose sentencing enhancements based on facts

found by the court by a preponderance of the evidence violated the

Sixth Amendment.       Thus, when a defendant pleads guilty and is

sentenced under the mandatory guidelines scheme, “[a]ny fact (other

than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea

of guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.”                 Booker, 543 U.S. at

244.

          Although         Hudson    objected    to    the    district    court’s

enhancements, his objections did not rest on the rule in Blakely.


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Therefore, this court’s review is for plain error.                      See United

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

this court held that a sentence imposed under the pre-Booker

mandatory sentencing scheme and enhanced based on facts found by

the court, not by a jury, constitutes plain error.                      That error

affects the defendant’s substantial rights and warrants reversal

under Booker when the record does not disclose what discretionary

sentence the district court would have imposed under an advisory

guidelines scheme.       Hughes, 401 F.3d at 555-56.

            Hudson’s twenty year sentence exceeded the sentencing

range that would have applied absent the enhancements that were

based on facts not found by the jury or admitted by Hudson.

Because the district court engaged in judicial fact-finding to

determine    Hudson’s    offense   level,      and   because      the    resulting

guideline range was imposed in a mandatory manner, there was a

Sixth Amendment violation under Booker.*

              Although    the   sentencing      guidelines        are   no     longer

mandatory,    Booker    makes   clear    a    sentencing    court       must    still

“consult     [the]   Guidelines    and   take     them     into    account       when

sentencing.”     543 U.S. at 224.            On remand, the district court

should first determine the appropriate sentencing range under the

     *
      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 Hudson’s sentencing.



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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. at

547; see also United States v. Green, 436 F.3d 449, 456 (4th Cir.

2006).

            Accordingly, although we affirm Hudson’s conviction, we

vacate his sentence and remand for further consideration in light

of Booker.    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 AND REMANDED IN PART




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