                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4240



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


ROBERT LEE CYRUS,

                                               Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (CR-03-55)


Submitted:   September 28, 2005            Decided:   October 18, 2005


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


Affirmed in part, vacated in part, and remanded by unpublished per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


D. Craig Brown, THE LAW OFFICE OF D. CRAIG BROWN, P.C., Florence,
South Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Robert Lee Cyrus appeals his sentence of 235 months of

imprisonment imposed after he pleaded guilty to one count of

conspiracy to possess with intent to distribute 50 grams or more of

cocaine base, in violation of 21 U.S.C. § 846 (2000).   Counsel has

filed an Anders1 brief asserting that there are no meritorious

issues for appeal, but questioning whether the district court

complied with the requirements of Fed. R. Crim. P. 11 when it

accepted Cyrus’ plea, and whether it erred in enhancing Cyrus’

sentence under U.S. Sentencing Guidelines Manual (“USSG”) § 3A1.2

(b)(1) (2002), based on Blakely v. Washington, 542 U.S. 296 (2004).

Cyrus was notified of his right to file a pro se supplemental

brief, but has not done so.    The Government declined to file a

brief. Because we conclude that Cyrus’ sentence was enhanced based

upon facts not charged in the indictment or admitted by Cyrus, we

vacate his sentence and remand.2

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

Supreme Court applied the rationale of Blakely to the federal

sentencing guidelines and held that the mandatory guidelines scheme


     1
      See Anders v. California, 386 U.S. 738 (1967).
     2
      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 Cyrus’ sentencing.      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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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).           The Court remedied the constitutional

violation by severing and excising the statutory provisions that

mandate sentencing and appellate review under the guidelines, thus

making the guidelines advisory. Id. at 756-57 (Breyer, J., opinion

of the Court).     Subsequently, in United States v. Hughes, 401 F.3d

540, 546 (4th Cir. 2005), this court held that a sentence that was

imposed under the pre-Booker mandatory sentencing scheme and was

enhanced based on facts found by the court, not by a jury (or, in

a guilty plea case, not admitted to by the defendant), constitutes

plain error that 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 guidelines scheme.            Hughes, 401 F.3d at 546-56.

The court directed sentencing courts to calculate the appropriate

guidelines range, consider that range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2004), and impose a sentence.              If the district

court imposes a sentence outside the guidelines range, the court

should state its reasons for doing so.            Id. at 546.

             Because Cyrus did not object to the sentencing range of

235 to 293 months of imprisonment determined by the district court,


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we review the district court’s guidelines calculation for plain

error.    United States v. Olano, 507 U.S. 725, 732 (1993); Hughes,

401 F.3d at 547.       Under the plain error standard, Cyrus must show:

(1) there was error; (2) the error was plain; and (3) the error

affected his substantial rights.            Olano, 507 U.S. at 732-34.      Even

when these conditions are satisfied, this court may exercise its

discretion    to    notice    the   error   only   if   the   error   “seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.”       Id. at 736. (internal quotation marks omitted).

             Our review of the record leads us to conclude that Cyrus’

base offense level was properly determined and is supported by the

drug quantity alleged in the indictment and included in the factual

basis stated at Cyrus’ plea hearing, with which he explicitly

agreed.   However, Cyrus also received a three-level enhancement of

his   offense       level    for    official     victim,   pursuant    to   USSG

§ 3A1.2(b)(1). We conclude that the imposition of this enhancement

was error under the Sixth Amendment as applied in Booker, because

the facts supporting this enhancement were not alleged in the

indictment     or    admitted      by   Cyrus,   and    because,   absent   this

enhancement, Cyrus’ guidelines range would have been 168 to 210

months, below the range in which Cyrus was sentenced.

            In his Anders brief, counsel also asserts error in the

district court’s acceptance of Cyrus’ plea because Cyrus failed to

verbally respond to every question posed by the court during his


                                        - 4 -
Rule 11 plea colloquy.           We find that Cyrus’ plea colloquy was

proper and conducted in accordance with the law, see United States

v. DeFusco, 949 F.2d 114, 117, 120 (4th Cir. 1991), and further

find that there is no showing that Cyrus’ failure to verbally

respond   to   each   of   the   district   court’s   questions   adversely

affected his substantial rights.

           As required by Anders, we have examined the entire record

and find no other meritorious issues for appeal.          Accordingly, we

affirm Cyrus’ conviction, vacate his sentence, and remand for

resentencing in accordance with Booker and Hughes.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.



                                                        AFFIRMED IN PART,
                                                         VACATED IN PART,
                                                             AND REMANDED




     3
      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. See 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)
(2000), 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) (2000).
Id. The sentence must be “within the statutorily prescribed range
. . . and reasonable.” Id. at 546-47.

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