                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5008


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MANTEL DELANCE MUBDI,

                Defendant – Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 12-7398)


Submitted:   July 26, 2013                 Decided:   August 27, 2013


Before SHEDD, DAVIS, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.   Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.    ON BRIEF: Claire J. Rauscher,
Executive Director, Kevin A. Tate, Assistant Federal Defender,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Mantel Delance Mubdi entered a conditional guilty plea to

conspiracy to distribute and possess with intent to distribute a

quantity    of   cocaine    and    at    least    50     grams    of     cocaine    base

(“crack cocaine”), in violation of 21 U.S.C. § 846, possession

with intent to distribute a quantity of cocaine and at least 50

grams of crack cocaine, in violation of 21 U.S.C. § 841, and two

firearms    offenses    not    at       issue    here.         Although     the     Fair

Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat.

2372, went into effect prior to Mubdi’s sentencing, the district

court sentenced him to a total of 300 months’ imprisonment in

accordance with pre-FSA law.             On appeal, this court affirmed the

district court over Mubdi’s objection that the district court’s

use of judicial factfinding to find facts that increased the

mandatory     minimum      sentence      violated        his     Fifth     and     Sixth

Amendment rights.       United States v. Mubdi, 691 F.3d 334, 344-45

(4th Cir. 2012).       The Supreme Court granted Mubdi’s petition for

writ of certiorari, vacated this court’s judgment, and remanded

for further consideration in light of Alleyne v. United States,

133 S. Ct. 2151 (2013).           Because of intervening changes in law,

we vacate Mubdi’s sentence and remand to the district court for

resentencing.




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                                           I.

     The      presentence      investigation       report    (“PSR”)      found   Mubdi

responsible for 290.5 grams of crack cocaine.                            Because of a

prior       felony    drug     conviction,        Mubdi     faced    a    twenty-year

mandatory minimum sentence under pre-FSA law.                        Mubdi did not

object to the PSR’s finding that the crime involved 290.5 grams,

but he did argue that the FSA governed his sentence, and that

under the FSA the district court had the authority to impose a

sentence of less than twenty years.                  The government argued that

it was irrelevant which law applied because Mubdi was in fact

responsible for 290.5 grams of crack cocaine--enough to trigger

a twenty-year mandatory minimum under either law.                        The district

court rejected Mubdi’s argument and sentenced him to concurrent

twenty-year sentences for the narcotics offenses. *

        For   the    first    time   on   appeal,    Mubdi    contended      that   the

district      court    also    violated     his     Fifth    and    Sixth   Amendment

rights by increasing the mandatory minimum sentence he faced

based on the 290.5 grams the district court found Mubdi actually

possessed, rather than the 50 grams to which Mubdi admitted.                        If

the court had used 50 grams to determine the mandatory minimum,

        *
       Mubdi also received a concurrent ten-year sentence for
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1), and a consecutive five-year sentence for
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c).



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Mubdi would have faced a mandatory minimum ten-year sentence.

This court found that his argument was foreclosed by Harris v.

United States, 536 U.S. 545, 568 (2002) (holding that increasing

mandatory       minimums   based     on     judicial    factfinding       does     not

violate the Sixth Amendment).

     After       we   decided      Mubdi’s      appeal,      the    Supreme      Court

overruled Harris in Alleyne and held that facts which increase

mandatory minimum sentences must be admitted or submitted to the

jury and established beyond a reasonable doubt.                     133 S. Ct. at

2163.      Thus, the district court’s finding that Mubdi’s crime

involved 290.5 grams of cocaine, a finding that increases the

the mandatory minimum sentence, is impermissible.

     Since the briefing in this case, the Supreme Court has also

held that the FSA applies to pre-FSA offenders sentenced after

the Act’s effective date.            Dorsey v. United States, 132 S. Ct.

2321,    2331    (2012).     Thus,        the   FSA   applies      to   Mubdi.      We

reconsider       Mubdi’s   sentence       in    light   of    these     intervening

changes.



                                          II.

     Mubdi did not preserve his Sixth Amendment claim before the

district court; therefore, we review his sentencing argument for

plain error.       United States v. Lynn, 592 F.3d 572, 577 (4th Cir.

2010).      An error is plain when it is clear or obvious, and

                                           4
affects substantial rights.              Id.       Even if the law at the time of

sentencing is “settled and clearly contrary to the law at the

time of appeal,” an error need only be “plain” at the time of

appellate review.         Johnson v. United States, 520 U.S. 461, 468

(1997).       Thus,    even     though    the       error   was   not    clear    to   the

district court at the time of Mubdi’s sentencing--in fact, it

was settled that the district court was correct at that time--it

is   now   clear    and   obvious        that      the   district   court    erred      in

finding facts that raised Mubdi’s mandatory minimum sentence.

      The error also affected Mubdi’s substantial rights.                              To

establish this element, Mubdi must show that the error actually

affected      the     outcome      of    the       proceedings,     i.e.,    that      his

“sentence was longer than that to which he would otherwise be

subject.”      United States v. Angle, 254 F.3d 514, 518 (4th Cir.

2001)   (en    banc).         If   the   district        court    applied   the     FSA’s

mandatory minimum for 50 grams of cocaine, it is possible that

Mubdi’s sentence would be ten years shorter.                            Of course, the

district court may impose the same sentence on remand, but there

is nothing in the parties’ briefs that suggests such an outcome

is inevitable, nor is this possibility enough to deter us from

noticing the error.           Cf. United States v. Hughes, 401 F.3d 540,

556 & n.14 (4th Cir. 2005).

      Even when plain error is established, an appellate court

may correct the error only if “not doing so would result in a

                                               5
miscarriage of justice, or would otherwise seriously affect the

fairness,      integrity      or    public         reputation     of      judicial

proceedings.”       United States v. Whitfield, 695 F.3d 288, 303

(4th    Cir.   2012)    (internal    quotations          omitted).        We    have

previously held that a failure to notice an error where the

sentence is in excess of that permitted by the jury verdict

because   of   a   Sixth     Amendment       violation    would   have    such   an

effect.     See United States v. Hughes, 401 F.3d 540, 555 (4th

Cir. 2005).        In light of Alleyne, we conclude that a Sixth

Amendment violation involving a mandatory minimum sentence would

equally   diminish     the   integrity       and   public    reputation    of    the

judicial system.       Accordingly, the district court plainly erred

by basing Mubdi’s mandatory minimum sentence on its finding that

Mubdi’s crime involved 290.5 grams of cocaine, rather than a

fact to which he admitted--responsibility for 50 grams.



                                     III.

       For the foregoing reasons, we vacate Mubdi’s sentence and

remand this case for resentencing.

                                                            VACATED AND REMANDED




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