                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4802



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DESMOND OLLIVIERRE,    a/k/a    James   Franklin
Bridges,

                                              Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-7096)


Submitted:   October 17, 2005            Decided:   November 22, 2005


Before WILLIAMS and KING, Circuit Judges, and Louise W. FLANAGAN,
Chief United States District Judge for the Eastern District of
North Carolina, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


John H. Hare, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant.
Jonathan S. Gasser, Acting United States Attorney, Marshall Prince,
Assistant United States Attorney, Jimmie C. Ewing, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            On   August    13,    2004,    this     court   affirmed      Desmond

Ollivierre’s     conviction      and    sentence.    See    United   States    v.

Ollivierre, 378 F.3d 412 (4th Cir. 2004).           On January 24, 2005, the

Supreme Court of the United States granted Ollivierre’s petition

for writ of certiorari, vacated our judgment, and remanded the case

to   this   court   for   further      consideration   in    light   of   United

States v. Booker, 543 U.S. ____, 125 S. Ct. 738 (2005).                We vacate

the sentence and remand for resentencing.

            In Booker, the Supreme Court held Blakely v. Washington,

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

and that 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 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 ___, 125 S. Ct. at

756.

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

we held that a sentence imposed under the pre-Booker mandatory

sentencing scheme that was enhanced based on facts found by the


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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

guideline scheme.            Hughes, 401 F.3d at 546-56.

                  Because     the    district           court    engaged     in    judicial

fact-finding         to     determine      Ollivierre’s         offense    level    and   the

resulting guideline range was imposed in a mandatory manner, there

was a Sixth Amendment violation under Booker.1                             On remand, the

court must calculate the appropriate guideline range, consider the

range       in    conjunction       with    other        relevant   factors       under   the

guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and

impose a sentence.              If a court imposes a sentence outside the

guideline range, the district court must state its reasons for

doing so.          Hughes, 401 F.3d at 546.

                  Accordingly,      we    vacate        the   sentence    and   remand    for

further consideration in light of Booker and Hughes.2                           We dispense

with       oral    argument    because the facts and             legal     contentions are




       1
      The convictions were affirmed in our prior opinion and are
not before us now.
       2
      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 Ollivierre’s
sentencing.

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adequately presented in the materials before the court and argument

would not aid the decisional process.



                                              VACATED AND REMANDED




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