                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4480



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


CLYDE ALLEN NEWILL,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James C. Turk, Senior
District Judge. (CR-03-97)


Submitted:   February 7, 2005              Decided:   March 1, 2005


Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.


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by unpublished per curiam opinion.


W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, Richmond,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Joseph W. H. Mott, Assistant United States Attorney, Yolanda
Hibbler, Third Year Law Intern, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Clyde    Allen      Newill    was    found     guilty    by     a    jury      of

conspiracy    to    distribute     less      than   500     grams    of   cocaine          in

violation    of    21    U.S.C.    §   846      (2000),    and   three      counts         of

distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C) (2000).        On appeal, Newill contends the district court

erred at sentencing by increasing his base offense level above the

base offense level warranted by the facts found by the jury beyond

a reasonable doubt.       We find the imposition of the sentence was not

consistent with the rules announced in United States v. Booker, 125

S. Ct. 738, 2005 WL 50108 (2005).              Accordingly, while we affirm the

convictions, we vacate the sentence and remand with instructions

for resentencing.

            A jury found Newill was responsible for less than 500

grams of cocaine.       At sentencing, Newill’s offense level was based

in   part   upon    trial      testimony       showing    that   Newill         may    have

distributed in excess of 500 grams of cocaine and 3.5 grams of

methamphetamine.          Newill’s       offense    level      was   arrived          at   by

combining the two drugs by using the Drug Equivalency Tables.

Accordingly, Newill’s offense level was higher than if the quantity

of cocaine found by the jury was the only drug considered.                        Newill

challenged at sentencing the drug quantity by arguing he was being

sentenced    based      upon   drugs     not    found     by   the   jury       beyond      a

reasonable doubt.


                                         - 2 -
           We find Newill’s sentence is in violation of the rule

announced in United States v. Booker, 125 S. Ct. 738, 2005 WL 50108

(2005).   Booker held that the “Sixth Amendment is violated when a

district court, acting pursuant to the Sentencing Reform Act and

the   guidelines,   imposes   a   sentence   greater     than   the   maximum

authorized by the facts found by the jury alone.”         United States v.

Hughes, __ F.3d __, 2005 WL 147059, *3 (4th Cir. Jan. 24, 2005).

In Booker, the Supreme Court severed and excised two provisions of

the Sentencing Reform Act: 18 U.S.C. § 3553(b)(1), requiring

sentencing courts to impose a sentence within the guideline range,

and 18 U.S.C. § 3742(e), setting forth standards of review on

appeal.    The   Supreme    Court   held    that   the   remainder    of   the

guidelines remain as advisory, requiring a sentencing court to

consider applicable guidelines ranges, but allowing the court to

“tailor the sentence in light of other statutory concerns . . . .”

Booker, 2005 WL 50108, at *38.

           In Hughes, we found Hughes’ sentence exceeded the maximum

sentence authorized by the facts found by the jury alone, in

violation of Booker.       We vacated the sentence and remanded with

instructions for resentencing.

           While we affirm Newill’s convictions, we vacate the

sentence and remand with instructions for resentencing consistent




                                    - 3 -
with the rules announced in Booker and Hughes.*             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.



                                       AFFIRMED IN PART, VACATED IN PART,
                                           AND REMANDED WITH INSTRUCTIONS




       *
      We have reviewed the district court’s findings with respect
to drug quantity and find it supported by a preponderance of the
evidence. United States v. Vinson, 886 F.2d 740, 741-42 (4th Cir.
1989).

                                      - 4 -
