                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-4680



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


BRIAN ERIC COX,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-03-154)


Submitted:   July 21, 2006                 Decided:   August 14, 2006


Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Henry M. Anderson, Jr., ANDERSON LAW FIRM, P.A., Florence, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Rose Mary Parham, 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Unpublished opinions are not binding precedent in this circuit.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:

            Brian Eric Cox pled guilty pursuant to a plea agreement

to knowingly possessing a firearm that had been transported in

interstate     commerce   after      he   had    been    convicted      of   a   crime

punishable by imprisonment for a term exceeding one year, in

violation of 18 U.S.C.A. §§ 922(g)(1), 924(a) (West 2000).                         The

plea agreement included a provision in which Cox agreed to be

sentenced in accordance with the Sentencing Guidelines. Cox’s base

offense level was twenty-four.            The offense level was increased

four levels for using the firearm in connection with another felony

offense. It was increased an additional two levels for obstruction

of   justice    and    decreased      three      levels     for    acceptance       of

responsibility.       At sentencing, Cox did not file any objections to

the presentence investigation report.              Because he was in criminal

history    category     III,   his    range      of     imprisonment     under     the

Sentencing Guidelines was 87 to 108 months’ imprisonment.                    Cox was

sentenced to ninety-eight months’ imprisonment.                    On appeal, Cox

contends the increase to his offense level for using a firearm in

connection with another felony offense was in violation of the

Sixth     Amendment.      We   vacate      the    sentence        and   remand    for

resentencing.

            Because Cox did not raise an objection below based on the

Sixth Amendment, we review for plain error.                    United States v.

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


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Booker, 543 U.S. 220, 244 (2005), the Supreme Court held that a

Sixth Amendment violation arises where the district court, acting

pursuant to a mandatory application of the Sentencing Reform Act

and the Guidelines, imposes a sentence that is greater than the

maximum authorized by the facts found by the jury or admitted by

the defendant.   In United States v. Hughes, 401 F.3d 540 (4th Cir.

2005), this court found plain error where the defendant’s offense

level was increased based upon judicial fact finding, and under the

mandatory application of the Guidelines the defendant’s sentence

was higher than it would have been had his sentence been based only

on the facts to which he admitted.

           We note that an agreement to be sentenced under the

Guidelines does not waive the right to appeal the sentence under

Booker.    United States v. Hamdi, 432 F.3d 115, 122-24 (2d Cir.

2005).

           Cox’s offense level without the four-level enhancement

would have been twenty-six.1   His sentencing range of imprisonment

would     have   been   seventy-eight   to   ninety-seven    months’

imprisonment.2 Cox’s sentence imposed under a mandatory Guidelines



     1
      Cox admitted to the enhancement for obstruction of justice and
does not challenge it on appeal.
     2
      While Cox did receive a reduction for acceptance of
responsibility, when determining if Booker error occurred, we look to
the Guideline range based on admitted conduct or facts found by a
jury, and disregard any reduction for acceptance of responsibility.
See United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).

                                - 3 -
scheme is therefore longer than the sentence the district court

would have imposed without violating the Sixth Amendment.3

          Accordingly, while we affirm the conviction, we vacate

the sentence and remand for resentencing.4 Although the Sentencing

Guidelines are no longer mandatory, Booker makes it clear that a

sentencing court still must “consult [the] Guidelines and take them

into account when sentencing.”     Booker, 543 U.S. at 244-45.      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.      If that sentence falls outside

the Guideline range, the court should explain the 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.   We dispense with oral argument because the facts and legal




      3
      Cox’s failure to object at sentencing to the findings in the
presentence investigation report does not constitute a Booker
admission, United States v. Milam, 443 F.3d 382, 385-89 (4th Cir.
2006), although district courts may, of course, use undisputed, though
not affirmatively admitted, facts in calculating an advisory
Guidelines range.
      4
      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 Cox’s sentencing. Hughes, 401 F.3d at 545 n.4.


                                - 4 -
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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