                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 03-4493



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


WAYNE ALLEN FLETCHER,

                                               Defendant - Appellant.


         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-1331)


Submitted:   August 29, 2005             Decided:   September 28, 2005


Before WILLIAMS and SHEDD, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of Virginia,
sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


Keith Alan Williams, KEITH A. WILLIAMS, P.A., Greenville, North
Carolina, Richard William Westling, New Orleans, Louisiana, for
Appellant. Christine Witcover Dean, Anne Margaret Hayes, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             On November 18, 2004, this court affirmed Wayne Allen

Fletcher’s    convictions      and   sentence.    See    United       States   v.

Fletcher, No. 03-4493, 2004 WL 2617726 (4th Cir. Nov. 18, 2004)

(unpublished).     On May 16, 2005, the Supreme Court of the United

States granted Fletcher’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 pleads guilty and 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


                                     - 2 -
sentencing scheme that was enhanced based on facts found by the

court, not by a jury (or, in a guilty plea case, admitted by the

defendant), 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 Fletcher’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.




     1
      We take no position with respect to the Government’s argument
that some of the enhancements were based upon admitted conduct
because Fletcher did not object at sentencing to those
enhancements.

                               - 3 -
          Accordingly,   we   vacate    the   sentence   and   remand   for

further consideration in light of Booker and Hughes.2      3
                                                               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.



                                                   VACATED AND REMANDED




     2
      The convictions were affirmed in our prior opinion and are
not before us now.
     3
      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 Fletcher’s sentencing.

                                - 4 -
