                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4144



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JAMES THOMAS GADDY, a/k/a Wade Gaddy,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-03-109)


Submitted:   April 20, 2005                 Decided:   May 17, 2005


Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Robert J. Conrad, Jr., United States Attorney, Kimlani S. Murray,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          James Thomas Gaddy pled guilty, without the benefit of a

written plea agreement, to conspiracy to possess with intent to

distribute cocaine and cocaine base, in violation of 21 U.S.C.

§ 846 (2000), and possession with intent to distribute cocaine

base, in violation of 21 U.S.C. § 841(a)(1) (2000).   The district

court sentenced him under the federal Sentencing Guidelines to a

235-month term of imprisonment.   This sentence was based, in part,

on the court’s conclusion at sentencing that Gaddy was responsible

for between 500 grams and 1.5 kilograms of crack cocaine.

          Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), in

material submitted pursuant to Fed. R. App. P. 28(j), Gaddy asserts

for the first time on appeal that his sentence is unconstitutional.

In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme

Court held that the federal Sentencing Guidelines, under which

courts were required to impose sentencing enhancements based on

facts found by the court by a preponderance of the evidence,

violated the Sixth Amendment because of their mandatory nature.

Id. at 746, 750 (Stevens, J., opinion of the Court).     The Court

remedied the constitutional violation by making the Guidelines

advisory through the removal of two statutory provisions that had

rendered them mandatory.   Id. at 746 (Stevens, J., opinion of the

Court); id. at 756-57 (Breyer, J., opinion of the Court). Although

Gaddy did not raise the Sixth Amendment challenge at sentencing,


                               - 2 -
this court has held that a mandatory enhancement based on judicial

factfinding       supported     by      a     preponderance       of     the    evidence

constitutes plain error warranting correction.                         United States v.

Hughes,   401     F.3d   540,   547-48        (4th    Cir.     2005)    (citing   United

States v. Olano, 507 U.S. 725, 731-32 (1993)).

               In light of Booker and Hughes, we find that the district

court plainly erred in sentencing Gaddy.                 Therefore, we vacate his

sentence and remand for proceedings consistent with Hughes.*                           Id.

at 546 (citing Booker 125 S. Ct. at 764-65, 767 (Breyer, J.,

opinion of the Court)). 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




     *
      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.
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.” Id. at 547.

                                            - 3 -
