                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4544



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DONALD WAYNE RYAN,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (CR-04-30016)


Submitted:   June 1, 2006                  Decided:   June 28, 2006


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


David L. Heilberg, DYGERT, WRIGHT, HOBBS & HEILBERG, P.L.C.,
Charlottesville, Virginia, for Appellant. John L. Brownlee, United
States Attorney, Jean B. Hudson, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Donald Wayne Ryan appeals from his sentence for conspiring to

distribute crack cocaine.          As explained below, we vacate his

sentence and remand this case to the district court for re-

sentencing.



                                       I.

       On September 1, 2004, Ryan entered into an agreement with the

Government to plead guilty to conspiracy to distribute or to

possess with intent to distribute more than fifty grams of crack

cocaine in violation of 21 U.S.C. §§ 846 & 841(b)(1)(A) (West 1999

& Supp. 2006) (hereinafter “Count One”) and to using, carrying, or

possessing a firearm during, in relation to, and in furtherance of

a     drug   trafficking   crime       in   violation    of   18   U.S.C.   §

924(c)(1)(A)(I)    (West   2000    &    Supp.   2006)   (hereinafter   “Count

Three”).     The indictment had alleged, and Ryan agreed to admit,

that the conspiracy began “in or about the period beginning in

2000" and continued until “in or about [March 10, 2004].”              J.A. at

27, 56.      Ryan also agreed to waive his right to appeal “any

sentencing guidelines factors or the Court’s application of the

sentencing guidelines factors to the facts of [his] case.” J.A. at

59.

       The district court sentenced Ryan on May 5, 2005.            On Count

One, the court initially calculated an advisory guidelines sentence


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between 168 and 210 months’ imprisonment.    After prior notice to

Ryan’s counsel, the Government moved, and the district court

agreed, to treat Ryan’s earlier state court conviction for cocaine

possession as a prior felony drug offense.     In accordance with §

841(b)(1)(A)’s mandatory minimum sentence of twenty years for this

category of repeat drug offenders, the district court set Ryan’s

initial advisory guidelines sentence for Count One at 240 months.

See United States Sentencing Guidelines § 5G1.1(b) (2004) (“Where

a statutorily required minimum sentence is greater than the maximum

of the applicable guideline range, the statutorily required minimum

sentence shall be the guideline sentence.”).     The district court

then granted Ryan a downward departure based upon the Government’s

motion setting forth his substantial assistance to the Government,

and ultimately sentenced Ryan to 180 months in prison for Count

One.    On Count Three, the court sentenced Ryan to an additional

sixty months to be served consecutively to his Count One sentence.



                                 II.

       Ryan now challenges on a number of grounds the district

court’s enhancement of his Count One sentence based on his prior

drug conviction.     We review the sentence for reasonableness.

United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).

       The Government initially asserted that in his plea agreement

Ryan waived his right to challenge his sentence, but in his reply


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brief Ryan claimed for the first time that his earlier conviction

does       not   qualify       as   a    prior    felony      drug   conviction     under    §

841(b)(1)(A).             In   a    post-briefing       motion       to   this   court,    the

Government withdrew its waiver defense with respect to that issue

and now requests that we remand Ryan’s case for re-sentencing in

light of this newly raised error.

       Section 841(b)(1)(A) establishes a mandatory minimum sentence

of 120 months’ imprisonment, but increases that minimum to 240

months’ imprisonment for anyone who violates the statute “after a

prior conviction for a felony drug offense has become final.” Ryan

pleaded guilty to Count One of the indictment, which alleged that

he had engaged in a crack cocaine conspiracy that ended on or about

March 10, 2004.           Ryan’s state conviction for possession of cocaine

did    not       become   final         until    at   least    April      5,   2004.*     This

conviction therefore does not qualify as a prior felony drug

conviction under Section 841(b)(1)(A).

       When a sentence is imposed “as a result of an incorrect

application of the sentencing guidelines,” we must remand the case

for additional proceedings.                     18 U.S.C.A. § 3742(f) (West 2000 &

Supp. 2006); see also United States v. Green, 436 F.3d 449, 457



       *
      The records of Ryan’s state drug conviction indicate that the
court placed Ryan on probation for the offense, but “withheld
formal adjudication of guilt,” on April 15, 2003. Reply Br. of
Appellant App. at 28. Ryan failed to appear as scheduled on April
5, 2004, and the court continued the case until his apprehension.


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(4th    Cir.    2006)    (noting     that       a    sentence      falling    outside    the

properly calculated guidelines range because of an “error in

construing or applying the guidelines” is unreasonable).                                 The

district       court’s   error     in    treating         Ryan’s    cocaine    possession

conviction as a prior felony drug conviction led it to fix Ryan’s

initial advisory guidelines sentence at 240 months instead of

between 168 to 210 months, which in turn affected his ultimate

sentence on Count One.            Because the district court miscalculated

the advisory guidelines sentence applicable to Count One, we vacate

Ryan’s    sentence       on   that      count       and   remand    his    case    for   re-

sentencing.



                                           III.

       Having concluded that Ryan should be re-sentenced on Count

One, we do not reach Ryan’s other challenges to his sentence, nor

do we express any opinion on any other aspect of the reasonableness

of Ryan’s sentence.             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.

       The sentence of the district court on Count One is



                                                                VACATED AND REMANDED.




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