                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4645



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DONALD LYNN FIELDS,

                                              Defendant - Appellant.


         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-9114)


Submitted:   December 28, 2005            Decided:   February 9, 2006


Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


James Wyda, Federal Public       Defender, Martin G. Bahl, Staff
Attorney, Baltimore, Maryland,    for Appellant. Rod J. Rosenstein,
United States Attorney, Debra     L. Dwyer, Assistant United States
Attorney, Baltimore, Maryland,    for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             This case is before the court on remand from the Supreme

Court of the United States.           We previously affirmed Donald Lynn

Fields’ convictions and sentence for two counts of possession of a

firearm and ammunition as a convicted felon, both in violation of

18 U.S.C. § 922(g)(1) (2000). United States v. Fields, No. 03-4645

(4th Cir. Sept. 15, 2004) (unpublished). The Supreme Court vacated

our decision and remanded Fields’ case for further consideration in

light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005).

             A Sixth Amendment error occurs when a district court

imposes a sentence greater than the maximum permitted based on

facts found by a jury or admitted by the defendant.             Booker, 543

U.S. at ___, 125 S. Ct. at 756.           Because Fields did not raise a

Sixth Amendment challenge or object to the mandatory application of

the guidelines in the district court, review is for plain error.

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

             The facts that are supported by the jury verdict are that

Fields, a convicted felon, possessed a firearm and ammunition.

Grouped together, these facts correspond with an offense level of

twenty,      see   United     States     Sentencing    Guidelines     Manual

§§ 2K2.1(a)(4)(A) & 3D1.2(d)(2002), and a sentencing range of

forty-one to fifty-one months’ imprisonment.          See USSG Ch. 5, Pt.

A,   table   (based   on    Fields’   criminal   history   category   of   III


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(three)).        Fields’ sentence of sixty-three months exceeds this

range.       Because this error affects Fields’ substantial rights, we

conclude it is plainly erroneous.               See Hughes, 401 F.3d at 547-48.

              Accordingly,       we    vacate     the   sentence     imposed       by    the

district court and remand for resentencing in accordance 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.         See Hughes, 401 F.3d at 546 (applying Booker on

plain error review).            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 for the departure as required by 18

U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005).                     Id.    The sentence

must    be    “within    the    statutorily       prescribed     range     and     .    .    .

reasonable.” Id. at 546-47. We affirm Fields’ convictions for the

reasons stated in our prior opinion of September 15, 2004.                                  We

dispense with oral argument because the facts and legal contentions




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are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                 AFFIRMED IN PART;
                                      VACATED AND REMANDED IN PART




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