                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4235



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


STEPHEN C. SIGMON,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (CR-03-225)


Submitted:   May 25, 2005                  Decided:   July 13, 2005


Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Frank W. Dunham, Jr., Federal Public Defender, Robert J. Wagner,
Assistant Federal Public Defender, Meghan S. Skelton, Frances H.
Pratt, Research and Writing Attorneys, Richmond, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Michael C. Wallace, Assistant United States Attorneys,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Stephen   C.    Sigmon   appeals     the   seventy-seven   month

sentence imposed after he pled guilty, without a written plea

agreement, to possession of a firearm by a person previously

convicted of a misdemeanor crime of domestic violence, in violation

of 18 U.S.C. § 922(g)(9) (2000). Citing Blakely v. Washington, 124

S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738

(2005), Sigmon asserts that his sentence is unconstitutional.            He

also contends that the district court erred in finding that a

preponderance of the evidence supported the application of two

sentencing enhancements and in assessing two criminal history

points for offenses he committed before the age of eighteen.              We

affirm Sigmon’s conviction but vacate Sigmon’s sentence and remand

for resentencing.

                                     I.

           Sigmon contends that his sentence is unconstitutional in

light of Blakely and Booker.        Because he did not raise this issue

in the district court, his claim is reviewed for plain error.          Fed.

R. Crim. P. 52(b); United States v. Hughes, 401 F.3d 540, 547 (4th

Cir. 2005). To demonstrate plain error, Sigmon must establish that

error occurred, that it was plain, and that it affected his

substantial rights.       Id. at 547-48.       If a defendant establishes

these   requirements,     the   court’s     “discretion   is   appropriately

exercised only when failure to do so would result in a miscarriage


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of justice, such as when the defendant is actually innocent or the

error   seriously    affects        the    fairness,        integrity         or   public

reputation   of    judicial       proceedings.”            Id.   at     555    (internal

quotation marks and citation omitted).

            In Booker, the Supreme Court held that the mandatory

manner in which the Federal Sentencing Guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

125 S. Ct. 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 756-67 (Breyer, J., opinion of the Court).

            Here, the district court sentenced Sigmon under the

mandatory    Federal       Sentencing        Guidelines          and        applied     two

enhancements   based      on    facts     found   by   a    preponderance          of   the

evidence. Specifically, the court established a base offense level

of twenty-four by applying the Guideline for abduction in U.S.

Sentencing Guidelines Manual (“USSG”) § 2A4.1(a) (2002), through

the cross-reference in USSG §§ 2K2.1(c)(1), 2X1.1(a), and increased

the base offense level by two levels under USSG § 2A4.1(b) for use

of a dangerous weapon.         In light of Booker and Hughes, we find that




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the district court plainly erred in sentencing Sigmon and that the

error warrants correction.1

            Sigmon also asserts that, under Blakely, the district

court    erroneously   calculated    his    criminal   history   score   by

assessing three points for a malicious wounding offense and two

points because he was under a criminal justice sentence at the time

of the instant offense by making factual findings beyond the mere

fact of conviction, such as his age at the time of the prior

offenses, the date the prior offenses occurred, and whether the

length of the prior sentences fell within the applicable time

limits for counting prior offenses.         We disagree.   In Booker, the

Supreme Court reaffirmed its holding in Apprendi v. New Jersey, 530

U.S. 466 (2000), that “[a]ny fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.”     Booker, 125 S. Ct. at 756 (Stevens,

J., opinion of the Court). The district court’s finding that these

criminal history points were warranted falls within exception for

prior convictions.     Accordingly, there is no error.       See Booker,

125 S. Ct. at 750-51 (Stevens, J., opinion of the Court).



     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 Sigmon’s sentencing. 401 F.3d at 545
n.4.

                                    - 4 -
                                        II.

           Sigmon also raises two challenges to his sentence apart

from Booker.    He asserts that the district court erred by finding

that a preponderance of the evidence supported the abduction

enhancement.2       We note that, in finding that Sigmon abducted his

wife during the commission of the instant offense, the district

court relied on its interpretation of Virginia law.                    However, to

determine whether an enhancement for abduction is warranted under

the Federal Sentencing Guidelines, the court should have applied

the definition in the Guidelines.             See USSG § 1B1.1, cmt. (n.1(a))

(“‘Abducted’    means    that   a     victim   was   forced    to   accompany   an

offender to a different location.              For example, a bank robber’s

forcing a bank teller from the bank into a getaway car would

constitute an abduction.”); United States v. Saknikent, 30 F.3d

1012, 1014 (8th Cir. 1994) (“[T]he abduction adjustment requires

only that force necessary to overcome the particular victim’s

will.”).       On    remand,    the    district      court    should    reconsider

application of the cross-reference to the abduction Guideline in

light of the Guideline definition.




     2
      Sigmon also challenges the firearm enhancement. We express
no opinion on whether the facts warrant such an enhancement. See
Hughes, 401 F.3d at 556 n.15 (“[W]e do not hold that in every case
involving a Booker issue, this court must first address alleged
calculation errors before vacating and remanding for resentencing
in light of Booker.”).

                                       - 5 -
          Sigmon also contends that the district court plainly

erred by assigning one criminal history point each to two juvenile

convictions that were committed more than five years before the

instant offense.   The Government concedes that the assessment of

these two criminal history points is plain error.        We agree and

further conclude that the plain error affects Sigmon’s substantial

rights because excluding those two points would yield a criminal

history score of nine, or category IV.3     (Sigmon was sentenced in

category V.)   Finally, we exercise our discretion to notice the

error.   Thus, on remand, the district court should resentence

Sigmon without these two criminal history points.

                                III.

          Accordingly,   we   affirm    Sigmon’s   conviction,   vacate

Sigmon’s sentence, and remand for resentencing consistent with

Booker and Hughes4 and without the criminal history points assessed


     3
      Contrary to the Government’s assertion, we find that Sigmon’s
conviction of driving under the influence on April 16, 2003, the
date of the instant offense, is a “related” offense and, therefore,
the probation officer properly declined to award a criminal history
point for that offense. See USSG § 4A1.2(a)(2) & cmt. (n.3).
     4
      Although the 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
(Breyer, J., opinion of the Court). 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.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a
sentence. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reasons for the

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for the offenses Sigmon committed before the age of eighteen.   We

dispense with oral argument because the facts and legal proceedings

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




departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &
Supp. 2005).   Hughes, 401 F.3d at 546.    The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.

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