                             PUBLISHED          Filed: 6/3/05

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4017



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellant,

          versus


ANDRE E. RIGGS,

                                              Defendant - Appellee.


                                 ORDER



    This court previously reversed the district court’s grant

of a downward departure to Andre Riggs based on his diminished

mental capacity under § 5K2.13 of the United States Sentencing

Guidelines.   United States v. Riggs, 370 F.3d 382 (4th Cir.

2004).    We held that Riggs was ineligible for the downward

departure because the facts and circumstances of his offense

indicated a need to protect the public and involved a serious

threat of violence under § 5K2.13(2).           Id. at 386-87.      We

vacated his sentence and remanded the case for resentencing.

Id. at 387.       Judge Duncan dissented.     Id. at 387-92.       The

Supreme   Court   subsequently   granted   certiorari,   vacated   our
decision, and remanded for reconsideration in light of United

States v. Booker, 125 S. Ct. 738 (2005).               See Riggs v. United

States, 125 S. Ct. 1015 (2005).          Upon further consideration, we

conclude that Booker does not alter our analysis of the downward

departure issue.       Accordingly, we reinstate our prior opinion

reversing the district court’s grant of a downward departure and

remanding the case for resentencing.

     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.

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).                  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."     Id. at 547.

     Entered     at    the   direction    of   Judge    Shedd,   with        the

concurrence of Judge Niemeyer and Judge Duncan.


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