                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4952



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JERRY LEE DELK,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Jerome B. Friedman,
District Judge. (CR-03-143)


Submitted:   April 20, 2005                 Decided:   May 26, 2005


Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Keith Loren Kimball, COLGAN, KIMBALL & CARNES, Virginia Beach,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Michael J. Elston, Assistant United States Attorney, Fernando
Groene, Assistant United States Attorney, Newport News, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jerry Lee Delk appeals his sentence of twenty-seven

months of imprisonment after his guilty plea to one count of

distribution of .17 grams of cocaine base, in violation of 21

U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1999 & Supp. 2004).

           Delk first argues that his sentence is unconstitutional

based upon the Supreme Court’s decision in Blakely v. Washington,

124 S. Ct. 2531 (2004).        Delk asserts that he could only be held

responsible for the quantity of cocaine base specified in the

indictment, rather than the greater quantity attributed to him as

relevant conduct in the presentence report.             The district court

overruled Delk’s Blakely objection and applied the guidelines in

accordance with this court’s direction in United States v. Hammoud,

378 F.3d 426 (4th Cir. 2004) (order), opinion issued by 381 F.3d

316 (4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051 (2005).

The   district   court   did   not,    however,    specify   an   alternative

sentence as suggested in Hammoud.

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

Supreme Court applied Blakely’s rationale to the federal sentencing

guidelines. After severing two provisions of the Sentencing Reform

Act (18 U.S.C. § 3553(b)(1), requiring sentencing courts to impose

a sentence within the guideline range, and 18 U.S.C. § 3742(e),

setting forth standards of review on appeal), the Court held that

the guidelines remain as advisory only.           Sentencing courts are now


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required to consider the applicable guideline range, but may

“tailor the sentence in light of other statutory concerns . . . .”

Booker, 125 S. Ct. at 757.     In this case, as in Booker, Delk’s

sentence was determined by application of the guidelines as a

mandatory determinant in sentencing. It is impossible to determine

on the present record whether the district court would have chosen

to sentence Delk to the same or a lesser term of imprisonment in

the exercise of its discretion if the guidelines were merely

advisory.

            Delk also asserts that his sentence is illegal because

the provision of § 3E1.1(b) of the guidelines that requires a

Government motion for a defendant to receive an additional offense

level reduction for acceptance of responsibility violates the

separation of powers doctrine. We find this argument to be without

merit.    Mistretta v. United States, 488 U.S. 361, 380-85, 412

(1989).

            We therefore vacate the sentence imposed by the district

court and remand for reconsideration of the sentence in accordance

with Booker.   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




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