                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4095



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RONNIE DALE BROADWELL,

                                            Defendant - Appellant.


Appeal from the United States District      Court for the Middle
District of North Carolina, at Durham.       James A. Beaty, Jr.,
District Judge. (CR-04-296)


Submitted:   June 22, 2005                 Decided:   July 18, 2005


Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Louis Carr Allen, III, Federal Public Defender, Thomas Norman
Cochran, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North
Carolina, for Appellant. Sandra Jane Hairston, Assistant United
States Attorney, Anna Mills Wagoner, United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ronnie Dale Broadwell pled guilty to possession with

intent to distribute methamphetamine in violation of 21 U.S.C. §

841(a)(1) (2000) and being a felon in possession of ammunition in

violation   of   18   U.S.C.   §   922(g)(1)   (2000).1   Broadwell   was

sentenced to sixty-eight months in prison. The district court also

specified an alternative sentence of forty-six to fifty-seven

months in prison under United States v. Hammoud, 381 F.3d 316 (4th

Cir. 2004), vacated, 125 S. Ct. 1051 (2005).         Broadwell appealed,

challenging only his sentence.

            Broadwell now moves for remand of this case to the

district court for resentencing in light of United States v.

Booker, 125 S. Ct. 738 (2005).         The Government does not oppose

remand for the purposes of resentencing.           Because the district

court applied the Guidelines as mandatory in sentencing Broadwell,

and because Broadwell objected in the district court, Broadwell’s

motion is well taken.2 Accordingly, although we affirm Broadwell’s




     1
      We note that although there was an appellate waiver in
Broadwell’s plea agreement, this case is distinguishable from our
recent decision in United States v. Blick, 408 F.3d 162 (4th Cir.
2005), because the Government here has not sought to enforce the
waiver.
     2
      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 Broadwell’s sentencing.

                                   - 2 -
conviction, we grant the motion to remand for resentencing in light

of the Booker decision.

            Although      the    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) (applying Booker on plain error review).                    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
                                                       AND REMANDED IN PART




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