                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4049



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


VERNON BROOKS,

                                              Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-8433)


Submitted:   November 9, 2005             Decided:   December 6, 2005


Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


William J. Dinkin, DINKIN, PURNELL & JOHNSON, PLLC, Richmond,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          This case is before the court on remand from the United

States Supreme Court.          We previously affirmed Vernon Brooks’

convictions for conspiracy to distribute oxycodone and possession

of oxycodone with intent to distribute within 1000 feet of a

protected area, in violation of 21 U.S.C. §§ 841(a)(1), 846, 849

(2000).   United States v. Brooks, No. 04-4049 (4th Cir. Oct. 28,

2004) (unpublished).        The Supreme Court vacated our decision and

remanded Brooks’ case for further consideration in light of United

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

          A Sixth Amendment error occurs when a district court

imposes a sentence greater than the maximum permitted based on

facts found by a jury or admitted by the defendant.       Booker, 125 S.

Ct. at 756.      Because Brooks did not raise a Sixth Amendment

challenge or object to the mandatory application of the guidelines

in the district court, our review is for plain error.               United

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

          The facts that are supported by the verdict of the jury

are that Brooks is responsible for an unspecified quantity of

oxycodone as part of the conspiracy of which he was a part, and

that the conspiracy occurred near a protected area.          These facts

correspond with an offense level of eight, see U.S. Sentencing

Guidelines    Manual   §§   2D1.1(c)(17),   2D1.2(a)(1)   (2003),   and   a

sentencing range of zero to six months’ imprisonment. See USSG Ch.


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5, Pt. A, table (based on Brooks’ criminal history category of I

(one)).       Brooks’       sentence      of     210    months     exceeds      this   range.

Because this error affects Brooks’ substantial rights, we conclude

it is plainly erroneous.*                  See Hughes, 401 F.3d at 547-48.

              Accordingly,         we    vacate       the   sentence      imposed      by    the

district court and remand for resentencing in accordance with

Booker.           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 Hughes, 401 F.3d at 546 (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    affirm      Brooks’


      *
      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 Brooks’ 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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convictions for the reasons stated in our prior opinion of October

28, 2004.   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.



                                                 AFFIRMED IN PART;
                                      VACATED AND REMANDED IN PART




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