                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4747



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JOHN WESLEY BLACKMON, JR.,

                                            Defendant - Appellant.



                             No. 05-4850



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellant,

          versus


JOHN WESLEY BLACKMON, JR.,

                                             Defendant - Appellee.



Appeals from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-04-93)


Submitted:   April 7, 2006                  Decided:   May 10, 2006


Before MOTZ, KING, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.


Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte, North
Carolina, for Appellant/Cross-Appellee. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee/Cross-Appellant.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

             John    Wesley   Blackmon,      Jr.,   appeals    his     200-month

imprisonment sentence imposed on his guilty plea to a one-count

indictment for conspiracy to possess with intent to distribute at

least 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841,

846 (2000) (Appeal No. 05-4747).               He does not challenge his

conviction. The Government filed a timely cross-appeal, which also

is currently pending (Appeal No. 05-4850).

             Prior   to   Blackmon’s   plea,     the    Government     filed   an

information pursuant to 21 U.S.C. § 851, noticing its intention to

rely on a prior felony conviction for sentencing purposes.               During

his   plea   colloquy,    Blackmon   was     advised,   and   stated    that   he

understood, that he faced a mandatory minimum term of imprisonment

of at least twenty years’ imprisonment if he had a prior felony

conviction.

             The probation officer determined that Blackmon’s base

offense level was 36, pursuant to U.S. Sentencing Guidelines Manual

(“USSG”) § 2B1.1(a)(2) (2004), based on accountability for 1.47

kilograms of cocaine base. The probation officer added four levels

for role in the offense, pursuant to USSG § 3B1.1(a), and then

reduced three levels for acceptance of responsibility, pursuant to

USSG § 3E1.1(a), for a total offense level of 37.             With a criminal

history category of V, the probation officer calculated Blackmon’s

guideline range to be 324 to 405 months’ imprisonment.                 Blackmon


                                     - 3 -
filed    objections   to    the   presentence      report,   which   objections

included, inter alia, challenges to the calculation of the drug

quantity, both factually and on Sixth Amendment grounds, to the

four-level enhancement for his role in the offense, and to his

being subject to the enhanced statutory penalties, on the basis

that he never received the § 851 notice.

            During    sentencing,       the    district      court    overruled

Blackmon’s objection to the § 851 notice, after giving Blackmon the

opportunity to withdraw from his guilty plea.                 With regard to

Blackmon’s drug quantity and enhancement for role in the offense

objections, defense counsel admitted that the Government could

prove a quantity of 50 to 150 grams of cocaine base, but not the

nearly    1.5   kilograms    recommended      in   the   presentence   report.

Blackmon’s argument was premised on United States v. Booker, 543

U.S. 220 (2005), and he asserted that the drug amount and role in

the offense enhancements were enhancing factors that still must be

found by the jury.          The district court agreed with Blackmon,

stating that it was “of the opinion that [after Booker] it’s still

necessary for a jury to find enhancements in this case.”                    The

district    court    then   sustained    Blackmon’s      objections    to   drug

quantity and role in the offense, finding that the drug quantity

attributable to Blackmon was between 50 and 150 grams of cocaine

base and that his offense level should not be increased based on

his leadership role in the offense. The district court applied the


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three-level    reduction    for   acceptance   of    responsibility,    and

determined that Blackmon’s offense level was 29, with an attendant

guideline range of 140 to 175 months. After upholding the validity

of the § 851 information, the district court concluded that the

applicable statutory mandatory minimum term of imprisonment was 240

months.   The district court stated that it considered the factors

noted in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), considered

the guidelines to be advisory, and further considered that, after

consulting the guidelines, he was to enter a reasonable sentence.

The district court then announced the sentence of 200 months’

imprisonment (below the statutory mandatory minimum), followed by

a ten-year term of supervised release.1

          On   appeal,     Blackmon   challenges    the   district   court’s

determination that he was responsible for 50 to 150 grams of crack

cocaine and further contends that the district court’s statement of

reasons for the sentence it imposed was inadequate. The sole issue

raised by the Government in its cross-appeal is that the district

court erred in refusing to enhance Blackmon’s sentence based on

facts not found by the jury where the district court’s refusal to

apply such enhancement was based on the mistake of law that such

enhancement could not be applied notwithstanding the advisory



     1
      At the conclusion of the hearing, the district court repeated
its conclusion that it lacked the authority to enhance Blackmon’s
sentence based on the amount of drugs or his role in the
conspiracy.

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nature of the guidelines.2      Given our determination that this case

requires resentencing, as discussed below, the issues raised by

Blackmon on appeal are moot.

            Whether the district court properly applied the Sixth

Amendment right to a jury trial to require a jury’s finding of fact

to support a sentencing enhancement is a question of law that this

court reviews de novo.      United States v. Mackins, 315 F.3d 399, 405

(4th Cir. 2003).       After the Supreme Court’s decision in Booker, a

sentencing court is no longer bound by the range prescribed by the

sentencing guidelines.      United States v. Green, 436 F.3d 449, 455-

56 (4th Cir. 2006); United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005).       In determining a sentence post-Booker, however,

sentencing courts are still required to calculate and consider the

guideline range prescribed thereby as well as the factors set forth

in 18 U.S.C.A. § 3553(a).      Id.    As we stated in Hughes, this court

will affirm a post-Booker sentence if it is both reasonable and

within the statutorily prescribed range. Id. at 546-47.            Further,

this court has stated that, “while we believe that the appropriate

circumstances for imposing a sentence outside the guideline range

will depend on the facts of individual cases, we have no reason to

doubt    that   most   sentences   will   continue   to   fall   within   the


     2
      In response, Blackmon contends that even if the district
court was incorrect about its fact-finding role in the wake of
Booker, there was no cognizable error because the district court
imposed a sentence by treating the guidelines as advisory and by
invoking its powers under § 3553(a).

                                     - 6 -
applicable guideline range.” United States v. White, 405 F.3d 208,

219 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).

            In sentencing defendants after Booker, district courts

should apply a preponderance of the evidence standard, taking into

account that the resulting guideline range is advisory only:

     Booker does not in the end move any decision from judge
     to jury, or change the burden of persuasion.          The
     remedial portion of Booker held that decisions about
     sentencing factors will continue to be made by judges, on
     the preponderance of the evidence, an approach that
     comports with the [S]ixth [A]mendment so long as the
     guideline system has some flexibility in application. As
     a practical matter, then, [a defendant’s] sentence[]
     would be determined in the same way if [he was] sentenced
     today; the only change would be the degree of flexibility
     judges would enjoy in applying the guideline system.

United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (internal

quotation marks and citation omitted); see also United States v.

Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005); United States v.

Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005).

            Here, the district court plainly stated on the record

that only the jury had the authority to find enhancements in this

case.     It sustained Blackmon’s objections to the enhancements on

the basis that it did not have the authority to enhance Blackmon’s

sentence based either on a drug quantity greater than that to which

Blackmon admitted or on his leadership role in the conspiracy,

because    to   do   so   would   violate    Booker   and   Blackmon’s   Sixth

Amendment rights.         In so doing, we find that the district court


                                     - 7 -
erred as a matter of law.     Moreover, because the guideline range

was   not   properly   calculated,   Blackmon’s    sentence   was   not

reasonable.    See Green, 436 F.3d at 456.

            Accordingly, we vacate Blackmon’s sentence and remand for

resentencing in compliance with Booker and its progeny.3             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.



                                                  VACATED AND REMANDED




      3
      In resentencing Blackmon, the district court should follow
this court’s directive in Green, and must:

      (1) properly calculate the sentence range recommended by
      the Sentencing Guidelines; (2) determine whether a
      sentence within that range and within statutory limits
      serves the factors set forth in § 3553(a) and, if not,
      select a sentence that does serve those factors; (3)
      implement mandatory statutory limitations; and (4)
      articulate the reasons for selecting the particular
      sentence, especially explaining why a sentence outside of
      the Sentencing Guideline range better serves the relevant
      sentencing purposes set forth in § 3553(a).

Green, 436 F.3d at 455-56 (footnote omitted).       A sentence not
imposed within the properly calculated range must be based on the
factors listed under § 3553(a), which include the nature and
circumstances of the offense and the history and characteristics of
the defendant, the need to reflect the seriousness of the offense,
to promote respect for the law, to provide just punishment, to
afford adequate deterrence, to protect the public from the
defendant’s future crimes, to provide the defendant with needed
training, medical care and other correctional treatment.         18
U.S.C.A. § 3553(a). Id. at 456.

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