                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4215



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


THURMAN MOBLEY,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-99-165-10-V)


Submitted:   March 31, 2006                 Decided:   August 16, 2006


Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Joel Merritt Wagoner, LAW OFFICE OF WILLIAM T. PEREGOY, Wilmington,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           After a jury trial, Thurman Mobley was convicted of

conspiracy to possess with intent to distribute and to distribute

crack cocaine, and conspiracy to use, carry, and possess firearms

during and in relation to a drug trafficking offense.      On a special

verdict form, the jury found that the drug conspiracy involved “at

least 5 grams but less than 50 grams of cocaine base.”                 The

district court found that Mobley was responsible for between 35 and

50 grams of cocaine base and sentenced him to 170 months in prison.

Mobley appeals his sentence, asserting that it violates the Sixth

Amendment.    We agree and therefore vacate his sentence and remand

for resentencing.

           Citing United States v. Booker, 543 U.S. 220 (2005),

Mobley asserts that the district court’s finding of thirty-five to

fifty grams enhanced his sentence beyond the jury’s finding of five

to fifty grams, in violation of the Sixth Amendment.             Because

Mobley did not raise this issue in the district court, our review

is for plain error.     See United States v. Hughes, 401 F.3d 540,

547-48 (4th Cir. 2005).     To demonstrate plain error, a defendant

must establish that an error occurred, that the error was plain,

and that it affected his substantial rights.       Id. at 547-48.       If

the   defendant   establishes   these   requirements,   this   court   may

exercise its discretion to notice the error “only when failure to

do so would result in a miscarriage of justice, such as when the


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defendant is actually innocent or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.

Id. at 555 (internal quotation marks and citation omitted).

            In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

Booker, 543 U.S. at 233-34.    The Court remedied the constitutional

violation by making the Guidelines advisory through the removal of

two statutory provisions that had rendered them mandatory. Hughes,

401 F.3d at 546-47.

            Here, the district court sentenced Mobley under the

mandatory    federal   sentencing   guidelines    and     based    on    drug

quantities found by a preponderance of the evidence.               The jury

found that Mobley was responsible for at least five, but less than

fifty grams of crack.     This finding encompassed three different

offense levels under the sentencing guidelines, each providing for

different sentencing ranges.        The district court found, by a

preponderance of the evidence, that Mobley was responsible for at

least thirty-five but less than fifty grams of crack. This factual

finding placed Mobley in the highest of the three ranges possible

under the jury’s verdict.     Because the district court’s findings

increased   Mobley’s   sentence   beyond   that   which   may     have   been

authorized by the jury’s findings, we conclude that Mobley’s


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sentence was the result of plain error.1            See Booker, 543 U.S. at

233-34; see also United States v. Rhynes, 196 F.3d 207, 238 (4th

Cir. 1999), vacated in part on other grounds on reh’g en banc, 218

F.3d 310 (4th Cir. 2000) (holding that when there is a general

verdict   in     a   multiple-drug    conspiracy,    the   defendant    may   be

sentenced only up to the maximum for the least-punished drug

offense on which the conspiracy verdict might have been based).

               Accordingly, although we affirm Mobley’s convictions, we

vacate his sentence and remand for resentencing consistent with

Booker and Hughes.2        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


     1
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Mobley’s sentencing. 401 F.3d at 545
n.4.
     2
      Although the Guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the] Guidelines
and take them into account when sentencing.” 543 U.S. at 264. 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. Hughes, 401 F.3d at 546. If
that sentence falls outside the Guidelines range, the court should
explain its reasons for the departure as required by 18 U.S.C.A.
§ 3553(c)(2) (West 2000 & Supp. 2005). Hughes, 401 F.3d at 546.
The sentence must be “within the statutorily prescribed range
and . . . reasonable.” Id. at 547.

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