                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4204



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


FRANTZ MICHEL, a/k/a Freon, a/k/a John Doe,

                                              Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 03-10755)


Submitted:   February 28, 2006                Decided:   May 4, 2006


Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Michael Morchower, MORCHOWER, LUXTON & WHALEY, Richmond, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               This case is before us on remand from the United States

Supreme    Court      for       further         consideration        in    light     of   United

States v. Booker, 543 U.S. 220 (2005).                        In United States v. Michel,

No.   03-4204,       88    F.    App’x         623   (4th     Cir.   2004)      (unpublished),

vacated, 543 U.S. 1099 (2005), we affirmed Michel’s conviction and

life sentence imposed by the district court after a jury convicted

Michel    of    conspiracy        to      possess       with    intent     to    distribute    a

quantity of heroin, a quantity of cocaine, and more than fifty

grams of cocaine base “crack” in violation of 21 U.S.C. § 846

(2000).       On January 24, 2005, the Supreme Court granted Michel’s

petition for certiorari, vacated our judgment, and remanded in

light    of    Booker.          On     remand,        Michel     alleges        he   should    be

resentenced      in       light      of    Booker       and    makes      several    arguments

regarding      the    propriety           of    his   conviction.           After    reviewing

Michel’s appeal in light of Booker, we affirm his conviction but

vacate his sentence and remand for resentencing.

               Michel contends that his sentence violates the Sixth

Amendment      because      the      district         court     at   sentencing       held    him

accountable for additional drug amounts, a leadership role in the

offense, and possession of a gun based on findings not found by the

jury or admitted by him.                   Because Michel did not raise a Sixth




                                                - 2 -
Amendment issue in the district court, we review for plain error.1

See United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).              To

demonstrate plain error, Michel must establish that error occurred,

that it was plain, and that it affected his substantial rights.

Id. at 547-48. If a defendant satisfies these requirements, our

“discretion is appropriately exercised only when failure to do so

would    result   in   a   miscarriage   of   justice,   such   as   when   the

defendant is actually innocent or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Id. at 555 (internal quotation marks and citation omitted).

            In Booker, the Supreme Court held that the mandatory

manner in which the Sentencing Guidelines required courts to impose

sentencing enhancements based on facts found by the court by a



     1
      The Government asserts that Michel waived appellate review of
his Sixth Amendment challenge to his sentence by failing to raise
it in his initial brief before this court. Although the Government
correctly states the general rule, see United States v. Al-Hamdi,
356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It is a well settled rule
that contentions not raised in the argument section of the opening
brief are abandoned.”), we decline to enforce it in light of our
order directing the parties to file supplemental briefs addressing
Booker. See United States v. Washington, 398 F.3d 306, 312 n.7
(4th Cir.) (stating that “[a]lthough appellate contentions not
raised in an opening brief are normally deemed to have been waived
. . . the Booker principles apply in this proceeding because the
[Supreme] Court specifically mandated that we must apply [Booker]
. . . to all cases on direct review.”) (internal quotation marks
and citations omitted), cert. denied, 125 S. Ct. 2558 (2005);
United States v. James, 337 F.3d 387, 389 n.1 (4th Cir. 2003)
(“Because the court requested the additional briefing, this case is
not governed by our rule that arguments not raised in the
appellant’s opening brief are typically deemed abandoned on
appeal.”), cert. denied, 540 U.S. 1134 (2004).

                                    - 3 -
preponderance of the evidence violated the Sixth Amendment. 125 S.

Ct. at 746, 750 (Stevens, J., opinion of the Court).         The Court

remedied the constitutional violation by making the Guidelines

advisory through the removal of two statutory provisions that had

rendered them mandatory.   Id. at 746 (Stevens, J., opinion of the

Court); id. at 756-67 (Breyer, J., opinion of the Court).

            Here, the district court sentenced Michel under the

mandatory   Federal   Sentencing    Guidelines   by   determining   drug

quantities in excess of that listed in the indictment, under U.S.

Sentencing Guidelines Manuel § 2D1.1(c)(1) (2002), increased his

base offense level by four for his leadership role under USSG

§ 3B1.1(a), because he was an organizer of the criminal activity,

and increased his offense level by two for possession of a firearm

under USSG § 2D1.1(b)(1).     These findings yielded a Sentencing

Guideline range of life.    Using only the amount of drugs found by

the jury (fifty grams of crack cocaine), see USSG § 2D1.1(c)(4),

and without the enhancements for being an organizer and possessing

a firearm, Michel’s total offense level would have been 32, which,

with his criminal history category of I, would have provided a

sentencing range of 121-151 months of imprisonment.        In light of

Booker and Hughes, we find that the district court’s plain error in




                                   - 4 -
sentencing Michel based on facts found by the court affects his

substantial rights and warrants correction.2

               Accordingly, we vacate Michel’s sentence and remand for

resentencing.3      We also affirm Michel’s conviction for the reasons

in our prior opinion.4        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 IN PART, AND REMANDED




     2
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Michel’s sentencing. Hughes,
401 F.3d at 545 n.4. 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”).
     3
      Although the 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
(Breyer, J., opinion of the Court). On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. Hughes, 401 F.3d at 546. The court should consider
this sentencing range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a
sentence. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &
Supp. 2005).    Hughes, 401 F.3d at 546.     The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.
     4
      See Al-Hamdi, 356 F.3d at 571 n.8 (noting that “[i]t is a
well settled rule that contentions not raised in the argument
section of the opening brief are abandoned.”)

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