                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4174



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ORLANDO JONES,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-00-320)


Submitted:   April 25, 2005                 Decided:   May 18, 2005


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Robert L. McClellan, J. Marshall Shelton, IVEY, MCCLELLAN, GATTON
& TALCOTT, LLP, Greensboro, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Lisa B. Boggs, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Orlando Jones pled guilty to possession of a firearm by

a person previously convicted of a felony in violation of 18

U.S.C.A. §§ 922(g)(1), 924(a)(2) (West 2000 & Supp. 2004).                      The

district    court   sentenced         him     under   the   federal   Sentencing

Guidelines to a 120-month term of imprisonment.               This sentence was

based, in part, on the court’s findings concerning characteristics

of the offense and Jones’ prior criminal history.

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

Jones 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 Jones did not raise this Sixth Amendment

challenge at sentencing, this court has held that a mandatory

enhancement      based   on     judicial       factfinding     supported   by    a

preponderance of the evidence constitutes plain error warranting


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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 Jones.              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.

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