                                                     Filed:    May 19, 2006

                      UNITED STATES COURT OF APPEALS

                          FOR THE FOURTH CIRCUIT


                               No. 02-4844
                              (CR-01-10023)



UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee,

           versus



AGNES HOLBROOK,

                                                   Defendant - Appellant.



                                 O R D E R


     The court amends its opinion filed May 4, 2006, as follows:

     On   page   1,   attorney   information    section   --   “Anthony   E.

Collins, COLLINS & COLLINS, Wise, Virginia” is deleted and replaced

with “Sol Z. Rosen, Washington, D.C.” as counsel for Appellant.



                                             For the Court - By Direction



                                                /s/ Patricia S. Connor
                                                        Clerk
                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-4844



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus

AGNES HOLBROOK,

                                            Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-8323)


Submitted:   February 22, 2006               Decided:   May 4, 2006


Before WILLIAMS, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Sol Z. Rosen, Washington, D.C., for Appellant. John L. Brownlee,
United States Attorney, Eric M. Hurt, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Agnes Holbrook was convicted of possession of a firearm

by a person convicted of a misdemeanor crime of domestic violence,

in violation of 18 U.S.C. § 922(g)(9) (2000) (Count One), and

making false statements to a firearms dealer in connection with the

purchase of a firearm, in violation of 18 U.S.C. § 922(g)(6) (2000)

(Count Two).    The district court sentenced Holbrook to 120 months

in prison on Count One and a consecutive ninety months in prison on

Count Two.    This court upheld Holbrook’s convictions and sentences
on appeal.      United States v. Holbrook, 368 F.3d 415 (4th Cir.

2004),   vacated,   125   S.   Ct.   2934    (2005).   The   Supreme     Court

subsequently granted Holbrook’s petition for certiorari, vacated

this court’s judgment, and remanded for further consideration in

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

             The district court imposed Holbrook’s sentence before

Booker and its predecessor, Blakely v. Washington, 542 U.S. 296

(2004), and she did not raise objections to her sentence based on

the mandatory nature of the Federal Sentencing Guidelines or the
district court’s application of sentencing enhancements based on

facts not admitted by her or found by the jury beyond a reasonable

doubt.   Therefore, we review her sentence for plain error.            United

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

             The district court applied the second degree murder

cross-reference     and   increased     Holbrook’s     offense   level    for

obstruction of justice.        Without judicially-determined sentencing

enhancements, Holbrook’s offense level would have been fourteen.


                                     - 2 -
Because she was in criminal history category I, her guideline range

would have been fifteen to twenty-one months in prison.               The 210-

month sentence imposed by the district court under a mandatory

guideline    scheme    was   therefore     longer   than    the   sentence    the

district court could have imposed without violating the Sixth

Amendment.      We therefore conclude that plain error affecting

Holbrook’s substantial rights occurred in her sentencing.                Id. at

550-51.*

            Accordingly, we vacate Holbrook’s sentence and remand for
resentencing.        Although the Sentencing Guidelines are no longer

mandatory, Booker makes clear that a sentencing court still must

“consult     [the]    Guidelines    and    take   them     into   account    when

sentencing.”    Booker, 543 U.S. at 244-45.         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.    If that sentence falls outside the guideline range, the

court should explain the reasons 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.

     *
      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 Holbrook’s sentencing. 401 F.3d at 545 n.4.
See generally Johnson v. United States, 520 U.S. 461, 469 (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”).

                                     - 3 -
              We deny Holbrook’s motion for 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




                                     - 4 -
