                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4318



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JUANITA VALERIO, a/k/a Maria,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CR-03-505)


Submitted:   August 24, 2005            Decided:   September 22, 2005


Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


John C. Kiyonaga, Alexandria, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Kelli H. Ferry, Special Assistant
United States Attorney, Michael J. Elston, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Juanita Valerio appeals the 135-month sentence imposed

after    she    pled    guilty,   without   a    written    plea    agreement,    to

conspiracy to distribute 500 grams or more of cocaine, in violation

of 21 U.S.C. § 841(a)(1) (2000). Citing Blakely v. Washington, 542

U.S. 296 (2004), Valerio asserts on appeal that her sentence

violates the Sixth Amendment but does not challenge the validity of

her conviction.         We affirm Valerio’s conviction, vacate Valerio’s

sentence, and remand for resentencing.

               Valerio contends that her sentence is unconstitutional in

light of Blakely.1        Because Valerio did not raise this issue in the

district court, we review for plain error.                 See United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005).                 To demonstrate plain

error, Valerio must establish that error occurred, that it was

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

If   a   defendant       satisfies   these       requirements,      this    court’s

“discretion is appropriately exercised only when failure to do so

would    result    in    a   miscarriage    of   justice,    such    as    when   the


     1
      The Government asserts that Valerio waived the right to
appeal her sentence in a plea agreement executed before her initial
plea hearing. Valerio, however, did not plead guilty pursuant to
that agreement, and the agreement was never accepted by the
district court. Thus, the waiver of appellate rights provision
does not preclude Valerio from appealing her sentence.          See
Mabry v. Johnson, 467 U.S. 504, 507-08 (1984) (“A plea bargain
standing alone is without constitutional significance; in itself it
is a mere executory agreement which, until embodied in the judgment
of a court, does not deprive an accused of liberty or any other
constitutionally protected interest.”).

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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 applied the rationale in Blakely to the federal

sentencing guidelines and held that the mandatory manner in which

the guidelines required courts to impose sentencing enhancements

based on facts found by the court by a preponderance 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 756-67 (Breyer, J.,

opinion of the Court).

             Here, the district court sentenced Valerio under the

mandatory federal sentencing guidelines and applied enhancements

based   on   facts     found    by    a    preponderance   of    the   evidence.

Specifically,    the    court    attributed       to   Valerio   at    least   3.5

kilograms but less than five kilograms of cocaine and established

a base offense level of thirty.               See U.S. Sentencing Guidelines

Manual (“USSG”) § 2D1.1(c)(5) (2003).              The court also imposed a

three-level enhancement based upon Valerio’s managerial role in the

conspiracy, see USSG § 3B1.1(b), a two-level enhancement for

obstruction of justice, see USSG § 3C1.1, and a two-level downward


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adjustment for acceptance of responsibility, see USSG § 3E1.1.

These findings yielded a total offense level of thirty-three. With

a criminal history category of I, the applicable guideline range

was 135 to 168 months of imprisonment, and the court sentenced

Valerio to the bottom of the guideline range.

           Using only the amount of drugs charged in the indictment

and   without   the   enhancements   for   role   in    the    offense   and

obstruction of justice, Valerio’s offense level, for purposes of

determining whether a Sixth Amendment violation occurred, would

have been twenty-six.     See USSG § 2D1.1(c)(7); United States v.

Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).                 The resulting

guideline range would be sixty-three to seventy-eight months of

imprisonment.   USSG Ch. 5, Pt. A (Sentencing Table).           In light of

Booker and Hughes, we find that the district court plainly erred in

sentencing Valerio and that the error warrants correction.2

          Accordingly,    we   affirm    Valerio’s     conviction,   vacate

Valerio’s sentence, and remand for resentencing.3 We dispense with


      2
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Valerio’s sentencing.

      3
      Although the guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the]
[g]uidelines 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

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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




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 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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