                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4362



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CHARLES G. CANADY,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-02-127)


Submitted:   April 27, 2005                 Decided:   July 13, 2005


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


R. Clarke Speaks, Wilmington, North Carolina, for Appellant. Frank
D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Charles    G.     Canady      appeals       from   his    conviction         and

sentence for conspiracy with intent to distribute fifty grams or

more   of   cocaine    base    and     carrying     a     firearm     during      a     drug

trafficking conspiracy, in violation of 21 U.S.C. § 846 (2000) and

18 U.S.C. § 924(c) (2000).           We affirm Canady’s conviction, but we

remand for resentencing in light of United States v. Booker, 125 S.

Ct. 738 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.

2005).

            Canady claims the district court erred when it denied his

motion for a judgment of acquittal.                      This court reviews the

district    court’s    decision      to    deny     a    motion      for    judgment      of

acquittal de novo.      United States v. Gallimore, 247 F.3d 134, 136

(4th Cir. 2001).       Canady is mistaken that his acquittal of a drug

possession charge merits dismissal of the gun possession charge

because the gun possession charge related to the drug conspiracy

charge for which he was convicted and not to the drug possession

charge   for   which    he    was    acquitted.          Moreover,         the   jury    had

sufficient evidence to conclude that the gun, which was positioned

next to the drug proceeds in Canady’s car, facilitated the safe

transport of those proceeds.           Accordingly, the district court did

not err in denying Canady’s motion for a judgment of acquittal.

            Canady argues that the district court erred in denying

his request for a downward adjustment for his mitigating role in


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the offense. The district court’s determination of the defendant’s

role in the offense is a factual issue reviewed for clear error.

United States v. Perkins, 108 F.3d 512, 518 (4th Cir. 1997).

Safely    storing     the     money    was   not    a    minor    part    of    the    drug

trafficking conspiracy, and Canady’s role, while not complicated,

was nevertheless integral and material.                     Canady has failed to

provide any evidence that the district court clearly erred in its

decision.

              Canady argued in a supplemental brief that the district

court violated the Confrontation Clause of the Sixth Amendment by

admitting       statements      his    co-conspirator        James       Ardell    Canady

(“Ardell”) made to a confidential informant that Canady was a part

of the drug trafficking conspiracy.                     Canady contends that the

statements were inadmissible under Crawford v. Washington, 541 U.S.

36    (2004),    because      Ardell’s    statements       were     “testimonial”       in

nature.         In   Crawford    the     Supreme    Court        announced      that   the

Confrontation        Clause     prohibits     the       admission    of     testimonial

statements that are not subject to cross-examination.                          Id. at 50-

52.    While Crawford did not provide a comprehensive definition of

what      constitute        “testimonial         statements,”         the         broadest

interpretation argued by the parties in Crawford would define

testimonial statements as “made under circumstances which would

lead     an   objective       witness     reasonably       to     believe      that    the

statement[s] would be available for use at a later trial.”                          Id. at


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52.   Crawford referenced Bourjaily v. United States, 483 U.S. 171

(1987), as an example of a case in which nontestimonial statements

were correctly admitted against the defendant despite the lack of

prior opportunity for cross-examination. Crawford, 541 U.S. at 58.

In Bourjaily, the Court rejected a Confrontation Clause objection

to the admission of a conversation between a co-defendant and a

confidential informant.      Bourjaily, 483 U.S. at 181-84 (holding

that statements admissible under Rule 801(d)(2)(E) did not violate

the Confrontation Clause).     The statements at issue here were not

testimonial, even under the broadest interpretation of that term,

as Ardell clearly did not realize that his statements to the

informant were going to be used against him at trial.       The district

court did not abuse its discretion by admitting the statements by

Ardell.

            Finally, Canady claims that the district court improperly

sentenced him    when it imposed a sentence greater than the maximum

authorized by the facts found by the jury alone.          Because Canady

failed to raise this claim below, we must review it for plain

error.    Hughes, 401 F.3d at 547.         The jury convicted Canady of

conspiracy to distribute more than fifty grams of cocaine base. At

sentencing, the district court found Canady responsible for 79.8

kilograms   of   cocaine   base.    Given    Canady’s   criminal   history

category of II, the facts found by the jury on the drug conspiracy

charge authorized an offense level of thirty-two, with a resulting


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sentencing range of 135-168 months, while the range associated with

the judicially enhanced offense level of thirty-eight was 262-327

months.1    After a downward departure for substantial assistance,

Canady was sentenced to 182 months on this count.2           The district

court erred in basing Canady’s sentence on judge-found facts under

a mandatory guidelines regime, and the error was plain.            Id. at

547-48.    Because Canady’s sentence was longer than what could have

been imposed based on the jury’s verdict, the error affected

Canady’s substantial rights, id. at 548, and we will notice the

error, id. at 555.     Therefore, Canady must be resentenced.3

            Although   the   sentencing   guidelines   are    no   longer

mandatory, Booker makes clear that a sentencing court must still



     1
      The presentence report recommended a criminal history
category of III, and the district court stated at sentencing that
it was using category III. (J.A. 573). However, as the Government
points out in its brief, the sentencing range stated by the
district court is that associated with category II. Earlier in the
sentencing hearing, the court ruled in Canady’s favor on an
objection to the criminal history category, reducing his category
from III to II. (J.A. 562-63, 569). Thus, the later statement
that Canady’s criminal history category was III is either a
typographical error in the transcript or a misstatement by the
district court.
     2
      The consecutive sixty month sentence for the firearms charge
is not at issue.
     3
      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 Canady’s 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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“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 the factual findings appropriate for that

determination.      See Hughes, 401 F.3d at 546.          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 Canady’s conviction.          In light of Booker and

Hughes, we vacate Canady’s sentence and remand for resentencing.

The facts and legal contentions are adequately presented in the

materials before the court and oral argument would not aid the

decisional process.


                                                 AFFIRMED IN PART, VACATED
                                                     IN PART, AND REMANDED




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