                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4865



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


THOMAS M. HODGES,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (CR-03-364)


Submitted:   May 25, 2005                   Decided:   July 11, 2005


Before LUTTIG, KING, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


John K. Wiles, CHESIRE, PARKER, SCHNEIDER, BRYAN & VITALE, Raleigh,
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Unpublished opinions are not binding precedent in this circuit.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:

            Thomas M. Hodges pled guilty to nine counts of mail

fraud, in violation of 18 U.S.C. § 1341 (2000), ten counts of money

laundering, in violation of 18 U.S.C. § 1956(a)(1) (2000), and one

count of embezzlement of an insurance premium, in violation of 18

U.S.C. § 1033(b)(1) (2000).      Hodges was sentenced to 58 months’

imprisonment on each count to run concurrently, followed by a term

of   two   years   of   supervised    release   on   each   count   to   run

concurrently.

            On appeal, Hodges does not challenge his conviction.          He

does, however, argue that the district court erred in treating the

United States Sentencing Guidelines as mandatory and that an

enhancement to his sentence for abuse of a position of trust under

the federal Sentencing Guidelines was based on judicial fact-

finding in violation of United States v. Booker, 125 S. Ct. 738

(2005).1   We agree.    While we affirm Hodges’ conviction, we vacate

his sentence and remand the case for resentencing in accordance

with Booker.2



     1
      Hodges preserved the issues for appeal by raising them in the
district court.
     2
      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 Hodges’ 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 the appeal”).

                                     - 2 -
            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. 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).               Id.     The sentence must be

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

Id. at 546-47.3




     3
      Hodges and the Government agree that the district court is
not bound by the alternative sentence it previously announced in
accordance with our opinion in United States v. Hammoud, 381 F.3d
316, 353-54 (4th Cir. 2004) (en banc), cert. granted and judgment
vacated, 125 S. Ct. 1051 (2005), and vacated and remanded, ___
F. 3d ___, 2005 WL 975119 (4th Cir. Apr. 27, 2005) (en banc).

                                      - 3 -
          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




                              - 4 -
