                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4105



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


WILLIAM L. JOHNSON, a/k/a Buddy,

                                            Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-8073)


Submitted:   September 30, 2005        Decided:     February 10, 2006


Before WIDENER and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded for resentencing by unpublished per curiam
opinion.


Barron M. Helgoe, VICTOR VICTOR & HELGOE, LLP, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
Miller A. Bushong, III, Assistant United States Attorney, Beckley,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           William L. Johnson pled guilty to distribution of cocaine

base (crack) and was sentenced as a career offender to 151 months

imprisonment. We affirmed his sentence. United States v. Johnson,

No.   03-4105,     2004     WL   2368106     (4th    Cir.    Oct.   19,    2004)

(unpublished).      The Supreme Court subsequently granted Johnson’s

petition   for     certiorari,     vacated    this   court’s    judgment,    and

remanded his case for further proceedings in light of United

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

           Johnson’s sentence was imposed prior to 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).

           In a supplemental brief filed at this court’s direction

after the Supreme Court remanded his case, Johnson contends that

his sentence violated the Sixth Amendment and that the district

court’s comments at the sentencing hearing disclose that it would

have imposed a lower sentence under an advisory guidelines scheme.

The government maintains that Johnson’s career offender sentence

did not violate the Sixth Amendment, but concedes that the record


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indicates the district court might have imposed a lower sentence

had it had discretion to do so.

           Johnson contends that, under Booker, the district court

violated his Sixth Amendment rights by making impermissible factual

findings to classify him as a career offender.                      We are satisfied

that his claim is foreclosed by United States v. Collins, 412 F.3d

515, 521-23 (4th Cir. 2005) (holding that application of career

offender enhancement falls within exception for prior convictions

where facts are undisputed, making it unnecessary for district

court to engage in further fact finding about prior convictions);

see Shepard v. United States, 125 S. Ct. 1254 (2005) (holding that

a court’s inquiry as to disputed facts in connection with a prior

conviction is limited to the terms of the charging document, a plea

agreement, a transcript of the plea colloquy, or a comparable

judicial record).

           Johnson        did   not       dispute     that     he    satisfied       the

requirements for career offender status.                 Moreover, the district

court could determine from the judicial record of Johnson’s prior

drug   convictions    that      he    had   the   necessary        two    prior    felony

convictions     for   a    controlled       substance        offense.        See     USSG

§   4B1.2(b).    Therefore,          we   conclude    that    no    Sixth    Amendment

violation occurred.

           As   Johnson      argues       and   the   government         concedes,   the

district court’s comments at the sentencing hearing reveal that it


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was dissatisfied with the constraints of the mandatory guideline

system and unhappy with the length of the guideline sentence.    The

record thus provides a nonspeculative basis for concluding that the

mandatory nature of the guidelines prevented the district court

from imposing a sentence below the guideline range.   Accordingly,

we conclude that Johnson has made the necessary showing under

United States v. White, 405 F.3d 208, 223-24 (4th Cir. 2005), and

resentencing is required.

          For the reasons discussed, we vacate the sentence and

remand for resentencing consistent 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.   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


     *
      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 Johnson’s 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”).

                              - 4 -
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 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
                                                            FOR RESENTENCING




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