                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-4068



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RONNIE BARRETT,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (CR-04-244)


Submitted:   August 31, 2005            Decided:   September 22, 2005


Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Frank DeArmon Whitney, United States Attorney, Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Ronnie Barrett appeals his 120-month sentence following

his guilty plea to two counts of being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1), 924 (2000).             We

affirm   his   conviction,   vacate   his   sentence,   and   remand   for

resentencing.

           On appeal, Barrett argues that his sentence violated the

Sixth Amendment because it was enhanced based on judicial fact-

finding, and that it was erroneous under United States v. Booker,

125 S. Ct. 738 (2005), because it was imposed under a mandatory

Sentencing Guidelines regime. The Government agreed that Barrett’s

sentence was erroneously imposed under the Guidelines as mandatory

and has moved to remand the case for resentencing.

           Although we find no Sixth Amendment error in Barrett’s

sentence, see United States v. Evans, 416 F.3d 298, 300 n.4 (4th

Cir. 2005), we find that plain error occurred in sentencing Barrett

according to the Guidelines as mandatory.1        See United States v.

White, 405 F.3d 208, 215-25 (4th Cir. 2005). Accordingly, while we

affirm Barrett’s conviction, we grant the Government’s motion,




     1
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “we of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Barrett’s sentencing.

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vacate Barrett’s sentence and remand for resentencing in accordance

with Booker.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.



                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




     2
      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.      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.

                              - 3 -
