                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-4091



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


PETER KAY STERN, a/k/a Peter K. Stern,

                                             Defendant - Appellant.



         On Remand from the United States Supreme Court.
                        (S. Ct. No. 04-75)


Submitted:   October 31, 2005             Decided:   January 6, 2006


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished per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


John Kenneth Zwerling, ZWERLING, LEIBIG & MOSELEY, P.C.,
Alexandria, Virginia, for Appellant.    Gretchen C. F. Shappert,
United States Attorney, David A. Brown, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Peter Kay Stern was convicted following a jury trial of

one count of conspiracy to submit false and fraudulent claims to

the Internal Revenue Service (“IRS”), one count of obstructing the

work of IRS agents, one count of bank fraud, two counts of

threatening a federal judge, and two counts of using the United

States Postal Service mail system to communicate threats to a

federal judge.         The district court sentenced Stern to a 151-month

term   of    imprisonment,           followed    by    three     years   of   supervised

release.          We   affirmed      his   convictions      and    sentence.        United

States      v.     Stern,      No.     02-4091      (4th    Cir.     Apr.     23,    2004)

(unpublished).          Stern filed a petition for writ of certiorari in

the Supreme Court.          On January 24, 2005, the Supreme Court granted

the petition, vacated this court’s judgment, and remanded for

further consideration in light of United States v. Booker, 125

S. Ct. 738 (2005).          Stern v. United States, 125 S. Ct. 988 (2005).

For the reasons discussed below, we affirm Stern’s convictions,

vacate      the    sentence,      and      remand     to   the    district    court   for

resentencing consistent with Booker.

              Stern contends on remand that, in light of the Supreme

Court’s     decision      in    Booker,      his    sentence      violates    the    Sixth

Amendment because the district court enhanced his sentence based on

facts not admitted by him or proven to a jury beyond a reasonable

doubt. In Booker, the Supreme Court held that the mandatory manner


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in which the federal sentencing guidelines required courts to

impose sentencing enhancements based on facts found by the court,

by a preponderance of the evidence, violated the Sixth Amendment.

125 S. Ct. at 746, 750 (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. 2005)

(requiring sentencing courts to impose a sentence within the

applicable guideline range), and 18 U.S.C.A. § 3742(e) (West 2000

& Supp. 2005) (setting forth appellate standards of review for

guideline issues), thereby making the guidelines advisory.                 Id. at

756-57 (Breyer, J., opinion of the Court).

            Here,   the   district    court   sentenced     Stern       under   the

mandatory federal sentencing guidelines based on facts that were

neither admitted by him nor proved to a jury beyond a reasonable

doubt.    Based on our review of the record, we find that all but

four of Stern’s enhancements were imposed in violation of the Sixth

Amendment.    We find that the twelve-level enhancement in Group 1,

imposed pursuant to U.S. Sentencing Guidelines Manual (“USSG”)

§   2F1.1(b)(1)(M)    (1995)   because       the    intended     loss    exceeded

$1,500,000, and the two-level enhancement for multiple victims

pursuant to USSG § 2F1.1(b)(2) were not improper enhancements under

Booker    because   Stern   admitted    that       the   face    value    of    the

“comptroller warrants” exceeded this amount and that there were

multiple victims.     Additionally, the three-level enhancements to


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Groups 3 and 4, which were imposed pursuant to USSG § 3A1.2(a)

because   the   victims    were   federal     judges   and   the    offense   was

motivated by their status, were also not improper.                     The facts

supporting these two enhancements were clearly set forth in the

indictment as elements of the offense and found by the jury beyond

a reasonable doubt.

           We   find   that    the   remaining    sentencing       enhancements,

however, were not admitted by Stern nor proved to a jury beyond a

reasonable doubt. Considering only the four enhancements that were

not imposed in violation of Booker, we find that Stern should have

received offense levels of 20 for Group 1, 12 for Group 2, 15 for

Group 3, and 15 for Group 4.            Pursuant to USSG § 3D1.4, Stern’s

combined offense level would have been 23. With a criminal history

category of I, Stern’s guideline range would have been 46 to 57

months of imprisonment.       USSG Ch. 5, Pt. A (Sentencing Table).           The

151-month sentence Stern received is substantially longer than the

46 to 57 month term of imprisonment the district court could have

imposed based solely on the facts found by the jury.

           Thus,   under      Booker,    we   find   that    Stern’s    sentence

violates the Sixth Amendment, and also note that the district court

erred in treating the guidelines as mandatory.*                 Because Stern



     *
      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 Stern’s sentencing.

                                     - 4 -
clearly maintained in both the district court and this court that

his enhancements should have been proved beyond a reasonable doubt

pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), we find

that the issue has been preserved for appeal and does not require

plain error review.

          Accordingly, we vacate Stern’s sentence and remand the

case for resentencing in light of 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.    See Hughes, 401 F.3d at 546 (applying

Booker on plain error review).      The court should consider this

sentencing range along with the other factors described in § 3553,

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 § 3553(c)(2).    Id.   The sentence must be

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

Id. at 546-47.

          Because the Supreme Court’s remand order does not affect

this court’s conclusion in our prior opinion that the evidence is

sufficient to support Stern’s convictions for Counts 2 and 3, we

also affirm Stern’s convictions for the reasons set forth in the


                                 - 5 -
prior opinion.         We deny Stern’s pending motion to reassign his

sentencing upon remand. 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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