                                 UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                 No. 03-4937



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

            versus


DARRIN    ANTHONY    WRIGHT,   a/k/a   D,   a/k/a   New
York,

                                                     Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-03-39-BO)


Argued:    February 3, 2005                          Decided:   May 25, 2005


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Terry F. Rose, Smithfield, North Carolina, for Appellant.
Christine Witcover Dean, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Frank D. Whitney, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Darrin   Anthony   Wright    appeals   from   the   district   court’s

judgment sentencing him to 306 months’ imprisonment for various

firearms-related offenses.       Wright contends that his sentence must

be vacated under United States v. Booker, 125 S. Ct. 738 (2005),

because the district court, treating the United States Sentencing

Guidelines as mandatory, applied certain offense-level enhancements

based on judge-found facts. For the reasons that follow, we vacate

Wright’s sentence and remand for resentencing in accordance with

Booker.



                                    I.

     Wright pled guilty to one count of conspiracy to make false

statements in connection with firearms transactions (Count One);

three counts of making a false statement in connection with the

acquisition of a firearm (Counts Two, Three, and Four); one count

of being a felon in possession of a firearm (Count Twelve); and one

count of using or carrying a firearm during and in relation to a

drug trafficking crime (Count Sixteen, or the “§ 924(c) count”).

     Pursuant to the Sentencing Guidelines, the district court

grouped Counts One, Two, Three, Four, and Twelve because they

involved substantially the same harm.         See U.S.S.G. § 3D1.2(d).

Because Wright had previously sustained at least two qualifying

felony convictions, the base offense level for this group of


                                     2
offenses was 24.   The district court then added six levels based on

a finding that the offenses involved 25-99 firearms, see U.S.S.G.

§ 2K2.1(b)(1)(C), and another two levels based on a finding that at

least one of the firearms had been stolen or had an altered or

obliterated serial number, see id. § 2K2.1(b)(4).          Although these

enhancements   yielded   an   adjusted   offense   level    of    32,    the

Guidelines   capped   Wright’s   adjusted   offense    level     for   these

offenses at 29.    See id.    The district court then added four more

levels based on a finding that Wright was a leader or organizer of

the criminal activity, see U.S.S.G. § 3B1.1(a), and subtracted

three levels for acceptance of responsibility, see id. § 3E1.1(b),

resulting in a total offense level of 30.

     Based on his prior convictions for cocaine possession and

assault, assault with a deadly weapon, kidnaping and robbery, and

several traffic crimes, Wright was assigned 12 criminal history

points.   The district court added two points because the instant

offenses were committed less than two years following Wright’s

release from custody.    See U.S.S.G. § 4A1.1(e).       With 14 criminal

history points, Wright fell in criminal history category VI.

     For these grouped counts, the Guidelines range was 168-210

months.   In order to produce a sentence within this range, the

district court imposed consecutive sentences.         For Count One, the

district court sentenced Wright to the statutory maximum of 60

months.   See 18 U.S.C. § 371.   For Counts Two, Three, and Four, the


                                    3
district court sentenced Wright to the statutory maximum of 120

months.    See 18 U.S.C. § 922(a)(6).   For Count Twelve, the district

court sentenced Wright to an additional 30 months, yielding a total

of 210 months for the grouped counts.

     Count Sixteen, the § 924(c) count, was exempted from the

grouping rules.    See U.S.S.G. § 3D1.1(b).     The mandatory minimum

sentence for a § 924(c) conviction is 60 months’ imprisonment.     18

U.S.C. § 924(c). The Government moved for an upward departure from

this mandatory minimum sentence on the ground that criminal history

category VI did not adequately reflect the seriousness of Wright’s

criminal history or the likelihood of recidivism.        See U.S.S.G.

§ 4A1.3.     Among other things, the Government relied upon the

violent nature of a 1990 carjacking offense for which Wright was

imprisoned; his record of criminal activity during the time between

his parole in 2000 and his arrest for the instant offenses in 2002;

the nature of other charged but unconvicted conduct and Wright’s

lenient treatment in other cases; and the fact that murder charges

were pending against Wright at the time of his sentencing.     Wright

opposed the motion for upward departure on the grounds that the

Government’s motion was inconsistent with the plea agreement, and

a departure was not warranted in any event because his criminal

history score included three points for the 1990 carjacking and he

was innocent of the charges brought against him since his parole.




                                  4
      The district court ruled that the plea agreement did not

foreclose the Government’s requesting an upward departure.                   The

Government then requested that the upward departure be structured

as follows:

      •     Start at offense level 17 and category VI (51-63
            months), which encompasses the 60-months mandatory
            minimum sentence required for the § 924(c) count;

      •     Add four levels for the grouped counts, analogizing
            to the four-level enhancement for use of a firearm
            in connection with another felony, see U.S.S.G.
            § 2K2.1(b)(5);

      •     Since this four-level adjustment produced a range
            of 77-96 months, depart upward 36 months from the
            60-months mandatory minimum for the § 924(c) count.

The district court accepted the Government’s proposal and imposed

a sentence of 96 months for the § 924(c) count.                      This appeal

followed.



                                          II.

      Wright contends that he is entitled to resentencing because

the   district    court     imposed   a    sentence   pursuant   to    mandatory

Sentencing Guidelines that was based, in part, on judge-found

facts.      The   Supreme    Court    recently   held   that   the    Sentencing

Guidelines violate the Sixth Amendment insofar as they require

sentencing courts to impose sentences based, at least in part, on

findings of fact not made by a jury.            United States v. Booker, 125

S. Ct. 738, 756 (2005).          Rather than invalidate the Sentencing

Guidelines in toto, the Court severed and excised the provision

                                          5
requiring   sentencing    courts   to   impose   sentences   within   the

guidelines range, as well as the provision prescribing de novo

review of challenges involving departures from the guidelines

sentence.   Id. at 764.   As a result, application of the Sentencing

Guidelines is no longer mandatory, id. at 757, and courts of

appeals will review criminal sentences only for reasonableness, id.

at 767.

     Since Wright did not raise this objection in the district

court, our review is for plain error.      See United States v. Olano,

507 U.S. 725, 731-32 (1993); Fed. R. Crim. P. 52(b).         Under this

standard of review, “[t]here must be an error that was plain and

that affects substantial rights.” Olano, 507 U.S. at 732 (internal

quotations omitted).      For purposes of plain-error review, an

“error” is a “[d]eviation from a legal rule . . . unless the rule

has been waived,” id. at 732-33, and such an error is “plain” if it

is “clear” or “obvious” to the reviewing court, id. at 734.1          Even


     1
      To say that an error is “clear or obvious” is not to say,
however, that the district court must have ignored the applicable
law.   For instance, where the applicable law changes after the
district court rules, a court of appeals will say that there was an
“error” that was “plain” even though the district court faithfully
applied the law in effect at the time of its ruling. See 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”). In such a case, a
finding of “plain error” is no comment on the correctness of the
district court’s ruling at the time it was made. See United States
v. Hughes, 401 F.3d 540, 545, n.4 (4th Cir. 2005) (stating that
“[w]e of course offer no criticism of the district judge, who
followed the law and procedure in effect at the time” of
sentencing”).

                                    6
where the court of appeals finds an error that was plain, “Rule

52(b) leaves the decision to correct the forfeited error within the

sound discretion of the court of appeals, and the court should not

exercise that discretion unless the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Olano, 507 U.S. at 732 (internal quotations omitted).

     The district court applied Guidelines enhancements to Wright’s

base offense level for the grouped counts based on findings that

(1) the offenses involved 25-99 firearms, (2) at least one of those

firearms was stolen or had an altered or obliterated serial number,

and (3) Wright was a leader or organizer of the criminal activity.

     This case is similar to United States v. Hughes, 401 F.3d 540,

(4th Cir. 2005), where we vacated a criminal sentence and remanded

for resentencing in accordance with Booker.                        As in Hughes, the

district     court       here    imposed    the    sentence        mandated   by    the

Guidelines, based in part upon judge-found facts.                     See id. at 547-

48 (concluding that application of sentencing enhancements based on

judge-found facts was “error” that was “plain”). As in Hughes, the

defendant here was sentenced to a longer term of imprisonment than

the Guidelines would have required had the district court not

considered    that       fact.       See   id.    at    548-49     (concluding     that

imposition    of     a    sentence    in   excess       of   the    maximum   sentence

permitted     by     the    jury’s     verdict         affected     the   defendant’s

substantial rights).            Consistent with Hughes, we conclude that the


                                           7
district court committed an error that was plain and that affects

Wright’s substantial rights, and we exercise our discretion to

notice the error.2   See id. at 555-56.   Accordingly, we vacate the

judgment and remand this case for resentencing in accordance with

Booker.3

                                               VACATED AND REMANDED




     2
      We reject the Government’s contention that Booker has no
application where a defendant’s sentence is increased by an upward
departure rather than an offense-level enhancement.        Although
departures are discretionary, a sentencing court’s exercise of
discretion is limited by the Guidelines. Thus, the Court in Booker
characterized the entire Guidelines scheme as mandatory, despite
the fact that it allows for limited exercise of discretion. 125 S.
Ct. at 750 (“The Guidelines as written . . . are not advisory; they
are mandatory and binding on all judges. . . . The availability of
a departure in specified circumstances does not avoid the
constitutional issue. . . .”).     The Court did not distinguish
certain applications of the Guidelines from others, and neither do
we.
     3
      We express no opinion concerning the manner in which the
district court calculated Wright’s sentence under the Guidelines.
Although the 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. § 3553(a), 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.”
Hughes, 401 F.3d at 547.

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