                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4321



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ALLEN DWAYNE COATES,

                                            Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-8490)


Submitted:   October 28, 2005          Decided:     December 14, 2005


Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, R. Booth Goodwin II, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Allen Dwayne Coates pled guilty to crossing a state line

to engage in a sexual act with a minor under twelve, 18 U.S.C.

§ 2241(c) (2000), and possession of child pornography, 18 U.S.C.A.

§ 2252A(a)(5)(B), (b)(2) (West Supp. 2005), and was sentenced to a

term of twenty-five years imprisonment.        We affirmed his sentence.

United States v. Coates, No. 04-4321, 2004 WL 2457768 (4th Cir.

Nov. 3, 2004) (unpublished).         The Supreme Court granted Coates’

petition for certiorari, vacated this court’s judgment in light of

United States v. Booker, 125 S. Ct. 738 (2005), and remanded his

case for further proceedings.

              Coates was sentenced before the decisions in Booker and

its predecessor, Blakely v. Washington, 542 U.S. 296 (2004), and he

did not raise objections to his sentence based on the mandatory

nature   of    the   sentencing   guidelines   or   the   district   court’s

application of sentencing enhancements based on facts not admitted

by him or found by the jury beyond a reasonable doubt.          Therefore,

we review his sentence for plain error.         United States v. Hughes,

401 F.3d 540, 546-60 (4th Cir. 2005).

              Coates now contends that the district court plainly erred

under Booker in making certain sentencing enhancements based on

facts he did not admit and that his sentence thus violated the

Sixth Amendment.       Coates’ base offense level was 27, pursuant to

U.S. Sentencing Guidelines Manual § 2A3.1(a) (2003).          The district


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court added four levels because the offense was carried out by use

of a threat or a weapon (Coates used a knife), § 2A3.1(b)(1); four

levels     because   the     victim    was    under   the    age    of     twelve,

§   2A3.1(b)(2);     four    levels   because   the   victim      was    abducted,

§ 2A3.1(b)(5); and two levels because Coates misrepresented his

identity, § 2A3.1(b)(6).          Coates unsuccessfully challenged the

enhancements for use of a knife and abduction.              With a three-level

adjustment for acceptance of responsibility, USSG § 3E1.1, the

final offense level was 38.              Coates was in criminal history

category III, which gave him a guideline range of 292-365 months.

Coates contested the four-level enhancements for use of a threat or

knife and for abducting the victim, but the district court found

that both enhancements applied.          The court imposed a sentence of

300 months.

            Without the challenged enhancements, Coates’ offense

level would have been 33.             For purposes of determining Booker

error, this court uses the guideline range based on the facts the

defendant admitted before the range is adjusted for acceptance of

responsibility. United States v. Evans, 416 F.3d 298, 300 n.4 (4th

Cir. 2005).    Because Coates was in criminal history category III,

the guideline range under this calculation would have been 168-210

months.     The 300-month sentence imposed by the district court

exceeded    the    maximum    authorized      based   on    the    facts   Coates




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admitted,1 and thus violated the Sixth Amendment.                The sentence

thus meets the standard for plain error that must be corrected as

set out in Hughes.2

            We therefore vacate the sentence imposed by the district

court. 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.

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.

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.A. § 3553(c)(2).         Id.     The sentence must be “within the

statutorily prescribed range and . . . reasonable.”                   Id.    We


     1
      We need not decide here whether Coates’ failure to contest
the two-level enhancement for Coates’ misrepresentation of his
identity constitutes an admission of that fact because the issue is
not dispositive.   Without the enhancement, the guideline range
would have been 135-168 months.
     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 Coates’ 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”).

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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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