                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4307



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


WALTER ANTHONY WEST,

                                            Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-6135)


Submitted:   February 15, 2006               Decided:   May 4, 2006


Before MICHAEL, TRAXLER, and KING, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


James Wyda, Federal Public Defender, Beth M. Farber, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Thomas R. Ascik,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           This case is before the court on remand from the United

States Supreme Court. We previously affirmed Walter Anthony West’s

conviction    and   sentence   for   conspiracy   to   manufacture   and

distribute methamphetamine, in violation of 21 U.S.C. §§ 841, 846

(2000).   United States v. West, No. 03-4307 (4th Cir. June 3, 2004)

(unpublished). The Supreme Court vacated our decision and remanded

West’s case for further consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005).

           A Sixth Amendment error occurs when a district court

imposes a sentence greater than the maximum permitted based on

facts found by a jury or admitted by the defendant.      Booker, 125 S.

Ct. at 756.   Because West did not raise a Sixth Amendment challenge

or object to the mandatory application of the Sentencing Guidelines

in the district court, our review is for plain error.            United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

           The jury’s verdict supports a factual finding that West

was responsible for at least fifty grams of a mixture containing

methamphetamine.1     This factual finding corresponds to a base



     1
      Although the district court concluded that West was
responsible for “pure meth—actual meth,” the jury verdict form
specifies “more than 50 grams of a mixture or substance containing
a detectable amount of methamphetamine.” (J.A. at 795, 800). The
jury’s verdict thus supports a base offense level of 26 pursuant to
USSG § 2D1.1(c)(7), rather than a base offense level of 32 under
USSG § 2D1.1(c)(4) (for offenses involving at least 50 but no more
than 150 grams of methamphetamene (actual)).

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offense level of twenty-six. See U.S. Sentencing Guidelines Manual

§ 2D1.1(c)(7) (providing offense level for between 50 and 200 grams

of a mixture containing methamphetamine).                      When combined with

West’s   criminal        history   category       of    II,    this    results    in    a

sentencing range of seventy to eighty-seven months’ imprisonment.

USSG Ch. 5, Pt. A, table.          The district court imposed a sentence of

240 months, which exceeds this range.                    Because this amounts to

error that affects West’s substantial rights, we conclude it is

plainly erroneous.2        See Hughes, 401 F.3d at 547-48.

            Accordingly,      we       vacate    the    sentence      imposed    by   the

district court and grant West’s motion to remand for resentencing

in accordance 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.          See 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)    (2000),     and     then    impose   a

sentence.     Id.       If that sentence falls outside the Guidelines

range, the court should explain its reasons for imposing a non-


     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 West’s sentencing.

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Guidelines sentence as required by 18 U.S.C. § 3553(c)(2) (2000).

Id.    The sentence must be “within the statutorily prescribed range

and   .   .   .   reasonable.”      Id.     at   546-47.     We   affirm   West’s

convictions for the reasons stated in our opinion of June 3, 2004.

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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