                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4717



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


BARRY DUANE JOHNSON,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-03-423)


Submitted:   May 20, 2005                  Decided:   June 13, 2005


Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


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unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Barry Duane Johnson appeals from his conviction and

sentence following a guilty plea of being a felon in possession of

a firearm in violation of 18 U.S.C. §§ 922(g), 924(a)(2) (2000).

          Johnson argues the district court erred when it denied

his motion to suppress.      We review the denial of a motion to

suppress evidence de novo.   United States v. Hamlin, 319 F.3d 666,

671 (4th Cir. 2003).   We review the district court’s findings of

fact for clear error, viewing the evidence in the light most

favorable to the Government.   Id.     Because we conclude reasonable

suspicion existed to stop Johnson’s vehicle for illegal window

tinting, we affirm Johnson’s conviction.

          Johnson next argues that his sentence violated his Sixth

Amendment right to a jury trial as determined in Blakely v.

Washington, 124 S. Ct. 2531 (2004).     Johnson preserved this issue

at sentencing. Although we conclude the district court did not err

when it calculated Johnson’s criminal history category, or when it

found that one of Johnson’s prior convictions was a crime of

violence, we conclude the court’s finding that Johnson’s firearm

was stolen violates the mandate that “[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.”        United States v.

Booker, 125 S. Ct. 738, 748 (2005) (quoting Apprendi v. New Jersey,


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530 U.S. 466, 490 (2000)).*             We accordingly vacate Johnson’s

sentence and remand for resentencing consistent with Booker.

          Although the United States 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 United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005).    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.

          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 FOR RESENTENCING




     1
      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 Johnson’s sentencing.

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