                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4365



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


REGGIE WALDO CANADY,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-02-127)


Submitted:   May 27, 2005                  Decided:   July 11, 2005


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Samuel J. Randall, IV, THE LAW OFFICE OF SAMUEL J. RANDALL, IV, PC,
Wilmington, North Carolina, for Appellant.       Frank D. Whitney,
United States Attorney, Anne M. Hayes, Christine Witcover Dean,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Reggie Waldo Canady appeals from his conviction and

sentence for conspiracy to distribute more than fifty grams of

cocaine base in violation of 21 U.S.C. § 846 (2000), possession

with the intent to distribute more than five grams of cocaine base

in violation of 21 U.S.C. § 841(a)(1) (2000), and using and

carrying a firearm during the drug conspiracy in violation of 18

U.S.C. § 924(c) (2000).      We affirm Canady’s conviction, but we

vacate his sentence and remand for resentencing in light of United

States v. Booker, 125 S. Ct. 738 (2005), and United States v.

Hughes, 401 F.3d 540 (4th Cir. 2005).

           Canady claims the district court erred in declaring a

mistrial without first holding a hearing under Fed. R. Crim. P.

26.3.   Canady did not object to the declaration of a mistrial, and

we review errors not objected to at trial for plain error.        United

States v. Jarvis, 7 F.3d 404, 409-10 (4th Cir. 1993).        The district

court did not specifically ask the parties to state their positions

concerning the declaration of a mistrial in accordance with Rule

26.3.    However,   the   court   repeatedly   asked   the   parties   for

suggestions about how to handle the jury’s problems and considered

every suggestion made by both sides.      The purpose of a Rule 26.3

hearing was accomplished because each side had ample opportunity to

comment on the jury’s deadlock, suggest alternatives, and object to




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the mistrial. The district court met the requirements of Rule 26.3

and did not err.

           Canady also claims the district court erred in declaring

a mistrial rather than taking the less drastic step of dismissing

a problem juror.     During questioning by the district court, the

juror said he could deliberate, had not made his mind up before

hearing the evidence, and could participate in jury conversations

with an open mind.       Fed. R. Crim. P. 23(b)(3) only allows the

district court to dismiss a juror “if the court finds good cause.”

The district court did not find any cause to dismiss the juror and

the   evidence   fails   to   persuade   us   that   the   district   court’s

determination was erroneous.

           Canady next claims the district court erred by denying

his motion to suppress because the search warrant affidavit was

insufficient to establish probable cause.            This court reviews the

district court’s factual findings underlying a motion to suppress

for clear error and the district court’s legal determinations de

novo.   Ornelas v. United States, 517 U.S. 690, 699 (1996).            When a

suppression motion has been denied, this court reviews the evidence

in the light most favorable to the government.             United States v.

Seidman, 156 F.3d 542, 547 (4th Cir. 1998).

           The affidavit stated that a confidential informant told

police he had been to Canady’s residence in the previous forty-

eight hours and had seen cocaine base.         The affidavit established


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the informant’s reliability by stating the informant had made

controlled purchases of drugs for the police before and had given

police    reliable        tips     about      stolen   property    and    probation

absconders.       When an informant has proven to be reliable in the

past and has firsthand knowledge of the criminal activity in

question, probable cause exists for issuing a search warrant.

United States v. Chavez, 902 F.2d 259, 264 (4th Cir. 1990).

Furthermore, probable cause did not become stale in the forty-eight

hours between the informant’s observation and issuance of the

warrant; the informant’s observation was “so closely related to the

time of the issue of the warrant as to justify a finding of

probable cause at that time.”               United States v. McCall, 740 F.2d

1331,    1335-36       (4th    Cir.   1984)    (internal     quotation    marks   and

citation omitted).

               Even if the warrant was defective, the evidence obtained

from the defective warrant may nevertheless be admitted under the

good faith exception to the exclusionary rule.                    United States v.

Leon,    468    U.S.    897,     922-23    (1984).     The    detective    knew   the

informant was reliable from earlier tips and could reasonably rely

on the informant to determine whether there was probable cause.

The fact that both the magistrate issuing the warrant and the

district court reviewing the sufficiency of the warrant concluded

that there was probable cause to search is further evidence of the

objective good faith of the officers in executing the warrant. See


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United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir. 1993).             The

district court correctly denied Canady’s motion to suppress because

the police had probable cause to search his house, and even if a

defect in probable cause existed, the good faith exception applied.

            Finally, Canady claims that the district court improperly

sentenced him when it imposed a sentence greater than the maximum

authorized by the facts found by the jury alone.           Because Canady

failed to raise this claim below, we must review it for plain

error.   Hughes, 401 F.3d at 547.           The jury convicted Canady of

conspiracy to distribute more than fifty grams of cocaine base. At

sentencing, the district court found Canady responsible for 79.8

kilograms    of   cocaine   base.    Given    Canady’s   criminal   history

category of I, the facts found by the jury on the drug conspiracy

charge authorized an offense level of thirty-two, with a resulting

sentencing range of 121 to 151 months. In contrast, the range

associated    with    the   judicially      enhanced   offense   level   of

thirty-eight was 235 to 293 months.          The district court erred in

basing Canady’s sentence on judge-found facts under a mandatory

guidelines regime, and the error was plain.*              Id. at 547-48.

Because Canady’s sentence was longer than what could have been


     *
      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 Canady’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

                                    - 5 -
imposed based on the jury’s verdict, the error affected Canady’s

substantial rights, id. at 548, and we will notice the error, id.

at 555.    Therefore, Canady must be resentenced.

            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 the factual findings appropriate for that

determination.          See Hughes, 401 F.3d at 546.             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 affirm Canady’s conviction.               In light of Booker and

Hughes, we vacate Canady’s sentence and remand for resentencing.

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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