                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 03-4838



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


DAVID MAURICE      FULKS,   a/k/a   David   Maurice
Wellington,

                                                 Defendant - Appellant.


         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-8357)


Submitted:   November 4, 2005                 Decided:   January 6, 2006


Before NIEMEYER, TRAXLER, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Michael
A. DeFranco, 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Unpublished opinions are not binding precedent in this circuit.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:

              David Maurice Fulks, a/k/a David Maurice Wellington, was

convicted by a jury of two counts of possessing a firearm and one

count of possessing ammunition after having been convicted of a

crime punishable by imprisonment for a term exceeding one year in

violation     of   18   U.S.C.   §§   922(g)(1),   924(a)(2)   (2000).    The

district court sentenced Fulks to concurrent terms of fifty-eight

months in prison followed by three years of supervised release. On

appeal, Fulks asserted the district court clearly erred by imposing

a two-level enhancement under U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(1)(A) (2002), because he contended the evidence was

insufficient for the court to find he possessed a third firearm in

connection with the offense.          We determined the district court did

not clearly err and affirmed.          United States v. Fulks, No. 03-4838

(4th   Cir.    Oct.     14,   2004)   (unpublished).    The    Supreme   Court

subsequently granted Fulks’s petition for certiorari, vacated this

court’s judgment, and remanded for further consideration in light

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

              Fulks’s sentence was imposed before the decisions of

Booker and its predecessor, Blakely v. Washington, 542 U.S. 296

(2004), and he did not raise objections to his sentence based on

the mandatory nature of the sentencing guidelines or the district

court’s application of sentencing enhancements based on facts not

admitted by him or found by the jury beyond a reasonable doubt.


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Therefore,    we     review   his   sentence   for   plain   error.      United

States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005).

             Over Fulks’s objection, the district court applied a two-

level enhancement based on the court’s determination he possessed

a third firearm in connection with the offense in addition to the

two firearms he was convicted of possessing.              Based only on the

facts determined by the jury, Fulks’s offense level would have been

twenty.    Because he was in criminal history category III, his

guideline range would have been forty-one to fifty-one months. The

fifty-eight month sentence imposed by the district court under a

mandatory guideline regime was therefore longer than the sentence

the district court could have imposed without violating the Sixth

Amendment.     We therefore conclude plain error occurred in Fulks’s

sentencing under Hughes.*

             Accordingly, we vacate Fulks’s sentence and remand 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.”       Booker, 125 S. Ct. at 767.        On remand, the district

court should first determine the appropriate sentencing range under


     *
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Fulks’s sentencing. Hughes,
401 F.3d at 545 n.4. See generally Johnson v. United States, 520
U.S. 461, 468 (1997) (stating that an error is “plain” if “the law
at the time of trial was settled and clearly contrary to the law at
the time of appeal”).

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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.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a

sentence. Id. If that sentence falls outside the guideline range,

the court should explain its reasons for the departure as required

by 18 U.S.C.A. § 3553(c)(2).   Id.   The sentence must be “within the

statutorily prescribed range and . . . reasonable.”     Id.

          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




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