                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-4470



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


SYLVESTER DUGGER,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (CR-03-232)


Submitted:   August 5, 2005                 Decided:   August 19, 2005


Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Jacqueline A. Hallinan, HALLINAN LAW OFFICES, P.L.L.C., Charleston,
West Virginia, for Appellant.        Kasey Warner, United States
Attorney, Stephanie L. Haines, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Sylvester Dugger appeals his 262-month sentence following

his guilty plea to possession with intent to distribute five or

more grams of cocaine base in violation of 21 U.S.C. § 841(a)(1)

(2000).     We affirm his conviction, vacate his sentence, and remand

for resentencing.

             Dugger pled guilty pursuant to a written plea agreement.

On appeal Dugger argues: (1) his sentence violated the Sixth

Amendment under Blakely v. Washington, 542 U.S. 296 (2004), because

it was enhanced based on judicial findings of prior convictions;

(2)   the   district    court   abused    its   discretion   in   relying   on

unreliable    records    from   Georgia    to   determine    Dugger   was   the

offender in a prior conviction; and (3) the district erred in

denying his motion to suppress. After United States v. Booker, 125

S. Ct. 738 (2005) issued, Dugger filed a supplemental brief arguing

that the mandatory application of the sentencing guidelines was

plain error warranting reversal and remand in light of the district

court’s comments that the guidelines sentence was unduly harsh.

The Government agreed that remand was appropriate.                Because the

issues under Blakely and Booker are raised for the first time on

appeal, review is for plain error.          See United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005).




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               Although we reject Dugger’s other arguments,1 we find

plain       error   occurred   in   sentencing   Dugger   according   to   the

mandatory guidelines.2         See United States v. White, 405 F.3d 208,

215-25 (4th Cir. 2005). Thus, while we affirm Dugger’s conviction,

we vacate his sentence and remand for resentencing in accordance

with Booker.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.



                                                         AFFIRMED IN PART;
                                              VACATED AND REMANDED IN PART


        1
      We note Dugger waived his right to challenge the denial of
his motion to suppress by making a knowing and voluntary plea of
guilty. Tollett v. Henderson, 411 U.S. 258 (1973) (defendant who
pleads guilty may not challenge nonjurisdictional errors, including
deprivation of constitutional rights occurring prior to entry of
plea).
        2
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “we of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Dugger’s sentencing.
        3
      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 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.

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