                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4845



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


HORACE B. COX,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (CR-03-24)


Submitted:   September 26, 2005           Decided:   October 31, 2005


Before NIEMEYER, TRAXLER, and KING, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Dennis H. Sullivan, Jr., THE SULLIVAN LAW FIRM, P.C., 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Unpublished opinions are not binding precedent in this circuit.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:

            Appellant Horace B. Cox pled guilty without the benefit

of a plea agreement to one count of distribution of more than 5

grams of cocaine base and a quantity of cocaine hydrochloride, one

count of distribution of more than 5 grams of cocaine base and one

count of possession with intent to distribute more than 50 grams of

cocaine base and more than 500 grams of cocaine hydrochloride, all

in violation of 21 U.S.C. § 841(a)(1) (2000).            After finding Cox

was a career offender pursuant to U.S. Sentencing Guidelines

Manual § 4B1.1 (2003), the district court sentenced Cox to 235

months’   imprisonment.       The   district    court   also   announced    an

alternate sentence pursuant to our instructions in United States v.

Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued by 381

F.3d 316 (4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051

(2005), of 18 years’ or 216 months’ imprisonment.              Cox appeals,

challenging the mandatory application of the sentencing guidelines.

Because we find the court erred in applying the guidelines in a

mandatory     fashion,   we   vacate   and     remand   the    sentence    for

resentencing.

            In United States v. Booker, 543 U.S.          , 125 S. Ct. 738

(2005), the Supreme Court held that Blakely v. Washington, 542 U.S.

296 (2004), applied to the federal sentencing guidelines and that

the mandatory manner in which the guidelines required courts to

impose sentencing enhancements based on facts found by the court by


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a preponderance of the evidence violated the Sixth Amendment.

Thus, when a defendant pleads guilty and is sentenced under the

mandatory guidelines scheme, “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.”            Booker, 543 U.S. at                , 125 S.

Ct. at 756.        In addition, treating the guidelines as mandatory

rather than only advisory, even without judicial fact finding, is

error.     United States v. White, 405 F.3d 208, 216-17 (4th Cir.

2005).

            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).                Id.     The sentence must be


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“within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47.   The district court is under no obligation to impose

the alternate sentence announced at sentencing.

          Accordingly, while we affirm the convictions, we vacate

the sentence and remand for resentencing.1    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.2

                                          AFFIRMED IN PART; VACATED
                                               AND REMANDED IN PART




     1
      We find it premature at this juncture to consider Cox’s
argument that the district court erred by finding that a conviction
for trafficking in cocaine could be used as a predicate offense in
order to declare Cox a career offender.
     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 Cox’s sentencing.

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