                              UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                              No. 04-4143



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

            versus


TERRENCE JAVON ALLEN, a/k/a Terrence Devon
Allen,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Rebecca Beach Smith,
District Judge. (CR-03-87)


Submitted:    February 11, 2005              Decided:   March 4, 2005


Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Keith L.     Kimball, COLGAN, KIMBALL & CARNES, Virginia Beach,
Virginia,   for Appellant. Paul J. McNulty, United States Attorney,
Robert E.   Bradenham II, Assistant United States Attorney, Brian C.
Paschall,    Third Year Law Student, Newport News, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Terrence    Javon    Allen     appeals    the   twenty-four         month

sentence imposed after he was convicted of escape, in violation of

18 U.S.C. § 751(a) (2000).            We affirm Allen’s conviction, but

vacate his sentence and remand for re-sentencing.

            In determining the applicable sentencing range under the

Sentencing      Guidelines,*    the   probation      officer   applied      a    base

offense    level   of   thirteen,     which   was    reduced   by    four   levels

pursuant to USSG § 2P1.1(a)(1), (b)(3) because Allen escaped from

a   community    corrections     center.      The    probation      officer      then

assessed a two-level enhancement for reckless endangerment.                     USSG

§ 3C1.2.     Allen’s total offense level was eleven, which, combined

with his criminal history category of V, yielded an imprisonment

range of twenty-four to thirty months.                  At sentencing, Allen

objected to the enhancement for reckless endangerment, arguing that

his flight did not create a substantial risk of death or serious

bodily injury to another person.              The district court overruled

Allen’s objection and sentenced Allen to twenty-four months in

prison, three years of supervised release, and a $100 special

assessment.

             On appeal, Allen contends that the two-level enhancement

for reckless endangerment constitutes plain error under the Supreme

Court’s decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004),


      *
       U.S. Sentencing Guidelines Manual (2002) (“USSG”).

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

court’s decision in United States v. Hughes, __ F.3d __, 2005 WL

147059 (4th Cir. Jan. 24, 2005), because it was based upon facts

not charged in the indictment or found by the jury.           Allen does not

contest his conviction or the validity of the district court’s

factual    findings   that   supported     application   of   the   reckless

endangerment enhancement.

            In Booker the Supreme Court applied the Blakely decision

to the federal sentencing guidelines and concluded that the Sixth

Amendment is violated when a district court imposes a sentence

under the Sentencing Guidelines that is greater than a sentence

based solely upon facts found by the jury.          Booker, 125 S. Ct. at

752-56.    Rather than totally invalidating the Guidelines, however,

the Court held that the Guidelines are no longer binding on the

district courts, but are advisory only. To effectuate this remedy,

the Court severed two provisions of the Sentencing Reform Act (18

U.S.C. § 3553(b)(1), requiring sentencing courts to impose a

sentence within the guideline range, and 18 U.S.C. § 3742(e),

setting forth standards of review on appeal).            Sentencing courts

are now required to consider the applicable guideline range, but

may “tailor the sentence in light of other statutory concerns

. . . .”    Booker, 125 S. Ct. at 757.

            In   Hughes   this   court   vacated   Hughes’s   sentence   and

remanded for re-sentencing after concluding that the fourteen-level


                                   - 3 -
enhancement of Hughes’s offense level that was based upon facts not

admitted by Hughes or found by the jury amounted to plain error

that the court should recognize.              2005 WL 147059, at *1, 4-5.          The

court directed sentencing courts to calculate the appropriate

guideline range in accordance with pre-Booker practice, consider

that range in conjunction with other relevant factors under the

guidelines and 18 U.S.C. § 3553(a) (2000), and impose a sentence.

If the district court imposes a sentence outside the guideline

range, the court should state its reasons for doing so.                     Hughes,

2005 WL 147059, at *3.

           In    this    case,   as     in      Hughes,   Allen’s     sentence     was

determined      by   application      of     the    Guidelines   as   a    mandatory

determinant in sentencing. Moreover, the two-level enhancement for

reckless endangerment applied by the district court was based upon

facts not found by the jury, as that issue was not presented to the

jury in the indictment or by special verdict form.                    Finally, the

two-level enhancement affected Allen’s substantial rights, as it

resulted in a Guideline range of twenty-four to thirty months,

rather   than    one    of   eighteen      to      twenty-four   months.      It   is

impossible to determine on the present record whether the district

court would have chosen to sentence Allen to twenty-four months

under either of these ranges, or would have chosen a sentence at

the bottom of the lower range and imposed eighteen months of

incarceration. We therefore conclude that the district court erred


                                       - 4 -
in determining Allen’s sentence, that the error was plain and

affected Allen’s substantial rights, and that we should exercise

our discretion to notice the error.

          Accordingly, we grant Allen’s motion to expedite, affirm

his conviction, vacate the sentence imposed by the district court,

and remand for reconsideration of the sentence in accordance with

Booker and Hughes.   The mandate shall issue forthwith.



                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




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