                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4271



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RAYMONT DAVID BROWN,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-03-155)


Submitted:   June 27, 2005                 Decided:   July 19, 2005


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Derrick W. Lefler, GIBSON, LEFLER & ASSOCIATES, Princeton, West
Virginia, for Appellant.  Kasey Warner, United States Attorney,
John L. File, Assistant United States Attorney, Beckley, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Pursuant to a plea agreement, Raymont David Brown pled

guilty to distribution of a quantity of cocaine base (“crack”), in

violation of 21 U.S.C. § 841(a)(1) (2000).           The district court

sentenced Brown under the Federal Sentencing Guidelines to 137

months in prison.     Brown timely appealed.          We affirm Brown’s

conviction, vacate his sentence, and remand for resentencing.

          Brown contends that his sentence is unconstitutional in

light of Blakely v. Washington, 124 S. Ct. 2531 (2004).        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, a defendant must establish that error occurred, that it was

plain, and that it affected his substantial rights. Id. at 547-48.

If the defendant establishes these requirements, the court may

exercise its discretion to notice the error “only when failure to

do so would result in a miscarriage 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 United States v. Booker, 125 S. Ct. 738 (2005), 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


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of the evidence violated the Sixth Amendment.                 Id. 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

756-57 (Breyer, J., opinion of the Court).

              Here, the district court found that Brown was responsible

for   a   quantity    of     drugs   equivalent    to    303.31    kilograms      of

marijuana;     however      Brown    admitted    responsibility     only    for    a

quantity of crack equivalent to 12.6 kilograms of marijuana.                    The

district court also increased Brown’s offense level by two levels

under U.S. Sentencing Guidelines Manual § 2D1.1(b)(3) (2003) based

on facts to which Brown did not admit at his plea hearing.                       The

district court erred because the enhancements occurred under the

mandatory guidelines scheme.           Hughes, 401 F.3d at 547.          The error

was   plain    because      Booker   abrogated   the    previous   law     of   this

circuit.

              To   affect    Brown’s   substantial      rights,    the   sentence

imposed must have been longer than what could have been imposed

based on Brown’s admissions alone.             Id. at 548.   Brown admitted to

distributing a quantity of crack equivalent to 12.6 kilograms of

marijuana, which, including the three-level offense level reduction

awarded by the district court for acceptance of responsibility

under USSG § 3E1.1(a), (b), yields an offense level of thirteen and


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not the offense level of twenty-five upon which he was sentenced.

Because Brown’s criminal history category was VI, the district

court’s factual finding increased Brown’s sentencing range from

thirty-three to forty-one months imprisonment to 110 to 137 months

imprisonment. Brown’s 137-month sentence thus exceeds the sentence

that could have been imposed based only on the facts admitted by

Brown.   We therefore conclude that the district court committed

plain error that warrants correction.1

            Independent of Blakely, Brown also contends that the

district court erred by increasing his offense level by two levels

under USSG § 2D1.1(b)(3).    We find that, in the absence of the

Booker error, enhancement under USSG § 2D1.1(b)(3) would not be

improper.

            For the reasons stated, we affirm Brown’s conviction,

vacate his sentence, and remand for resentencing consistent with

Booker and Hughes.2    We dispense with oral argument because the


     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 Brown’s sentencing. 401 F.3d at 545 n.4.
     2
      Although the Guidelines no longer are 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 reason for the

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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




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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