                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4987



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JAMES EARL MCCABE, JR.,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Malcolm J. Howard,
District Judge. (CR-03-62)


Submitted:   May 11, 2005                   Decided:   May 26, 2005


Before WILLIAMS and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


Thomas P. McNamara, Federal Public Defender, Stephen Clayton
Gordon, Assistant Federal Public Defender, Jane E. Pearce, Research
and Writing Attorney, Raleigh, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          James Earl McCabe, Jr., pled guilty to possession of a

firearm after conviction of a felony, in violation of 18 U.S.C.

§§ 922(g)(1), 924 (2000).      McCabe was sentenced to eighty-four

months’ imprisonment to be followed by three years of supervised

release. The district court also specified an alternative sentence

of six years’ imprisonment pursuant to this court’s recommendation

in United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (order),

opinion issued by 381 F.3d 316, 353-54 (4th Cir. 2004) (en banc),

cert. granted and judgment vacated, 125 S. Ct. 1051 (2005). McCabe

appealed, challenging only his sentence.

          The Government now moves for remand of this case to the

district court for resentencing in light of United States v.

Booker, 125 S. Ct. 738 (2005).   McCabe does not oppose a remand for

the purpose of resentencing.     Because the district court applied

the Guidelines as mandatory in sentencing McCabe, and because

McCabe objected in the district court, the Government’s motion is

well taken.*   Accordingly, although we affirm McCabe’s conviction,

we grant the Government’s motion to remand to allow the district



     *
      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 McCabe’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”).


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court to reconsider McCabe’s sentence in light of the Booker

decision.      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) (2000).               Id.   The sentence must

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

Id. at 546-47.

            We dispense with oral argument because the facts and

legal contentions are adequately presented in the material before

the court and argument would not aid the decisional process.


                                                             AFFIRMED IN PART,
                                                 VACATED IN PART, AND REMANDED




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