                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4930



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


SILAS THOMAS KING,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.  Lacy H. Thornburg,
District Judge. (CR-01-210; CR-01-211)


Submitted:   November 28, 2005            Decided:   January 9, 2006


Before TRAXLER, KING, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Sue Genrich Berry, BOWEN, BERRY & POWERS, P.L.L.C., Wilmington,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Holly A. Pierson, 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Unpublished opinions are not binding precedent in this circuit.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:

          Silas Thomas King appeals his convictions and sentences

for conspiracy to commit armed bank robbery, in violation of 18

U.S.C. § 371 (2000); conspiracy to commit money laundering, in

violation of 18 U.S.C. § 1956(h) (2000); four counts of armed bank

robbery and aiding and abetting, in violation of 18 U.S.C. §§ 2,

2113(d) (2000); four counts of using and carrying a firearm during

and in relation to a crime of violence and aiding and abetting, in

violation of 18 U.S.C. §§ 2, 924(c) (2000); possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000);

and possession of ammunition by a convicted felon, in violation of

18 U.S.C. § 922(g)(1) (2000).

          King   was   convicted   after   a   jury   trial   for   his

participation in a string of violent bank robberies.          For the

reasons that follow, we affirm the convictions but vacate the

sentences and remand for resentencing.

          King contends that the district court’s admission of

business records violated his rights under the Confrontation Clause

and the rule of Crawford v. Washington, 541 U.S. 36 (2004).         King

did not object on these grounds in the district court, and thus

this court’s review is for plain error.        See United States v.

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

          In Crawford, the Supreme Court held that the Sixth

Amendment’s Confrontation Clause does not permit the introduction


                                - 2 -
of    out-of-court   testimonial   evidence       unless   the   witness   is

unavailable and the defendant had a prior opportunity for cross-

examination.      Crawford, 541 U.S. at 68.           Notably, the Court

discussed certain types of hearsay that “by their nature were not

testimonial — for example, business records or statements in

furtherance of a conspiracy.” Id. at 56. Accordingly, we conclude

that the admission of business records against King was not plain

error, and that King’s convictions should stand. See United States

v. Jamieson, 427 F.3d 394, 411 (6th Cir. 2005) (business records

not “testimonial” under the rule in Crawford).

            Next, King argues that enhancements to his sentence

violate the Supreme Court’s ruling in United States v. Booker, 125

S. Ct. 738 (2005), and that the district court misapplied the

sentencing guidelines in calculating his sentence.           In Booker, the

Supreme Court applied the rationale of Blakely v. Washington, 542

U.S. 296 (2004), to the federal sentencing guidelines and held that

the   mandatory   guidelines   scheme      that   provided   for   sentence

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment.          Booker, 125 S. Ct.

at 746-48, 755-56 (Stevens, J., opinion of the Court).             King did

not object on these grounds in the district court, and so we review

for plain error.     United States v. Hughes, 401 F.3d 540, 547 (4th

Cir. 2005).




                                   - 3 -
          We conclude that King’s guideline sentencing range was

enhanced based on facts not found by the jury or admitted by King,

in violation of Booker.1    The government concedes that Booker

errors occurred and that resentencing is appropriate. We agree and

therefore vacate King’s sentence and remand for resentencing.2

          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.



                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




     1
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of King’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").
     2
      Because we conclude that resentencing is appropriate in light
of Booker and the government’s concession, we decline to address
King’s other arguments regarding improper application of the
sentencing guidelines.     These issues can be addressed by the
district court when his sentence is recalculated.

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