                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4210



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


HERMAN NATHANIEL SCOTT,

                                             Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (CR-02-267)


Submitted:   July 18, 2005                 Decided:   August 3, 2005


Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


Katherine Carruth Link, Columbia, South Carolina, for Appellant.
J. Strom Thurmond, Jr., United States Attorney, Alfred W. Bethea,
Jr., Assistant United States Attorney, Florence, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Herman Nathaniel Scott pled guilty to conspiracy to

possess with intent to distribute 50 grams or more of cocaine base

and   five   kilograms     or   more   of   cocaine.       The   district      court

sentenced Scott under the federal sentencing guidelines to 188

months imprisonment.       This sentence included enhancements for drug

quantity and possession of a firearm.            The facts underlying these

enhancements were found by the district court by a preponderance of

the   evidence   and   were     neither     charged   in   the   indictment     nor

admitted by Scott at the guilty plea hearing.                Citing Blakely v.

Washington, 524 U.S. 296 (2004), Scott argues that his sentence is

unconstitutional because it was based on facts that were neither

charged in the indictment nor proven beyond a reasonable doubt.

This issue is raised on appeal for the first time and, thus, is

reviewed for plain error.         United States v. Hughes, 401 F.3d 540,

547 (4th Cir. 2005).

             After   Scott’s    sentencing,     the    Supreme    Court   decided

United States v. Booker, 125 S. Ct. 738 (2005), and held that the

federal sentencing guidelines scheme, under which courts were

required to impose sentencing enhancements based on facts found by

the court by a preponderance of the evidence, violated the Sixth

Amendment because of its mandatory nature.              Id. at 746, 750.         The

Court   remedied     the    constitutional       violation       by   making    the

guidelines advisory through the removal of two statutory provisions


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that        had    rendered      them    mandatory.         Id.       at    746,    756-57.

Subsequently,           we    held      that   sentencing         a    defendant         to   a

significantly longer term of imprisonment than the district court

could have imposed based solely on the facts found by the jury, or

admitted by the defendant, constituted plain error.                           Hughes, 401

F.3d at 547-56.

                  Here, a sentence based solely on the facts admitted by

Scott       at    his   guilty    plea    hearing    would    have         been    at    least

sixty-seven months less than the term of imprisonment to which he

was sentenced. Accordingly, in light of Booker and Hughes, we find

that        the   district    court      plainly    erred    in       sentencing        Scott.1

Therefore, we affirm Scott’s conviction, vacate his sentence and

remand for proceedings consistent with Booker.2                         We dispense with


        1
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Scott’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”).
        2
      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.
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), 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. § 3553(c)(2). Hughes, 401 F.3d at 546. The sentence must
be within the statutorily prescribed range and reasonable. Id. at
547.

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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




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