                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4435



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RENE ELLIS, a/k/a Money, a/k/a Nut,

                                            Defendant - Appellant.



         On Remand from the United States Supreme Court.
                  (S. Ct. Nos. 04-5765; 04-6471)


Submitted:   September 28, 2005        Decided:     December 16, 2005


Before MOTZ, TRAXLER, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


James P. Craig, CRAIG LAW FIRM, P.C., Columbia, South Carolina, for
Appellant.   Jonathan S. Gasser, Acting United States Attorney,
Marshall Prince, Assistant United States Attorney, Jimmy C. Ewing,
Esq., OFFICE OF THE U.S. ATTORNEY, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Rene Ellis was convicted by a jury of aiding and abetting

three bank robberies (Counts One, Five, and Eight), conspiracy to

carry      firearms      during    and    in   relation    to    bank    robberies   in

violation of 18 U.S.C. § 924(o) (2000) (Count Four), and three

substantive counts of aiding and abetting violations of 18 U.S.C.

§§ 924(c), 2 (2000) (Counts Two, Six, and Nine).                    We affirmed his

sentence     of    852    months    imprisonment,        and    subsequently    denied

rehearing.        United States v. Ellis, No. 03-4435 (4th Cir. Mar. 17,

2004) (unpublished).

              Ellis filed a petition for 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).                  Ellis v. United States,

125 S. Ct. 1047 (2005).              Ellis’ case has been remanded to this

court for further proceedings.

              Because      Ellis’    sentence      was    imposed       prior   to   the

decisions in Booker and its predecessor, Blakely v. Washington, 542

U.S. 296 (2004), he 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 him or found by the jury beyond a reasonable

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

States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005).


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            We first note that, in his supplemental brief, Ellis

again asserts that the district court erred in imposing consecutive

sentences for the § 924(c) convictions in Counts Two, Six, and

Nine.     He raised the issue before this court previously, and we

rejected it, concluding that “the district court did not err in

imposing the statutorily required consecutive sentences.”             United

States v. Ellis, 2004 WL 515542 at *2.           Ellis does not claim that

the § 924(c) sentences were error under Booker. Therefore, further

review of the issue is foreclosed by the mandate rule.             See United

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).           The mandate rule

“compels compliance on remand with the dictates of a superior court

and   forecloses    relitigation   of   issues    expressly   or   impliedly

decided by the appellate court.”        Id.

            Ellis received a four-level role adjustment that the

district court determined should apply on Counts One, Four, and

Eight, over Ellis’ objection, and a one-level loss adjustment on

Count Five which he did not contest.          Without the role adjustment,

Ellis’ total offense level for Counts One, Five, and Eight would

have been 22.      The total offense level for Count Four would have

been 24. A four-level multiple-count adjustment would have applied

under U.S. Sentencing Guidelines Manual § 3D1.4 (2002), making the

combined adjusted offense level 28.        Because Ellis was in criminal

history category IV, the guideline range would have been 110-137

months.     The 168-month sentence imposed by the district court


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therefore exceeded the maximum permitted based on the facts found

by the jury, and violated the Sixth Amendment.              The sentence thus

meets the standard for plain error that must be recognized under

the reasoning set out in Hughes.*

           Accordingly,   we    vacate    the    sentence     and   remand   for

resentencing consistent with Booker.              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 imposing

a non-guidelines sentence 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


      *
      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 Ellis’ 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”).

                                  - 4 -
materials   before   the   court   and     argument   would   not   aid   the

decisional process.



                                                      VACATED AND REMANDED




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