                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-4111



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TYRONE MELVIN SERVANCE, JR.,

                                             Defendant - Appellant.


     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-9648)


Submitted:   July 18, 2007                 Decided:   August 2, 2007


Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Clarke F. Ahlers, CLARKE F. AHLERS, P.C., Columbia, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Martin J.
Clarke, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Tyrone Melvin Servance, Jr. was charged with one count of

conspiracy to distribute 500 grams or more of a mixture containing

a detectable amount of cocaine hydrochloride and 50 grams or more

of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2000), one

count of possession with intent to distribute 500 grams or more of

a mixture containing cocaine hydrochloride and 50 grams or more of

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

possessing a handgun during and in relation to a drug trafficking

crime,    in    violation   of   18   U.S.C.   §   924(c)(1)   (2000)   (“Count

Three”), and one count of being a convicted felon in possession of

a handgun, in violation of 18 U.S.C. § 924(g)(1) (2000) (“Count

Four”).    He pled guilty to Count Four and proceeded to trial on the

remaining three counts.          The jury found him guilty of all three

counts.    At sentencing, Servance did not object to the findings in

the presentence investigation report.               He was sentenced to 238

months’ imprisonment on the drug charges to run concurrent with a

120 month sentence on Count Four.              He was also sentenced to a

consecutive 60 month sentence on Count Three.                  On appeal, this

court affirmed.       See United States v. Servance, 394 F.3d 222 (4th

Cir. 2005).       On the same day the Servance opinion was issued, the

Supreme Court decided United States v. Booker, 543 U.S. 220 (2005).

On May 23, 2005, the Supreme Court vacated this court’s judgment

and remanded the case for further consideration in light of Booker.


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See Servance v. United States, 544 U.S. 1047 (2005).         While we

affirm the convictions, we vacate the sentence and remand for

resentencing.

           Servance did not previously object to his sentence on

Sixth Amendment grounds. Therefore, review of his sentence for any

Booker error is for plain error.        See   Fed. R. Crim. P. 52(b),

United States v. Olano, 507 U.S. 725, 731-32 (1993).        Under the

plain error test, a defendant must show that (1) error occurred;

(2) the error was plain; and (3) the error affected his substantial

rights.   Id.   Even when these conditions are satisfied, this court

may exercise its discretion to notice the error only if the error

“seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings.”    Id. (internal quotation marks omitted).

If an appellant meets these requirements, our “discretion is

appropriately exercised only when failure to do so would result in

a miscarriage of justice, such as when the defendant is actually

innocent or the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.”      See United States v.

Hughes, 401 F.3d 540, 555 (4th Cir. 2005) (internal quotation marks

and citation omitted).

           This court has addressed two types of Booker error:      a

violation of the Sixth Amendment and a failure to treat the

sentencing guidelines as advisory.       Hughes, 401 F.3d at 552.   A

Sixth Amendment error occurs when the district court imposes a


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sentence greater than the maximum permitted based on facts found by

a jury or admitted by the defendant.         Booker, 543 U.S. at 245.

Here, the base offense level of 36 that was used was higher than

the base offense level of 32 that would have applied had the

probation officer only considered the jury finding implicit in the

drug counts.    The two-level enhancement for obstruction of justice

also violates the Sixth Amendment under Booker because it was not

found by a jury or admitted by Servance.      Therefore, based on facts

found by the jury alone, Servance’s offense level would have been

32, his criminal history category would have been I, and his

guideline range would have been 121-151 months rather than the

range of 235-293 months that the district court used in sentencing

Servance.

            This court has held that a Booker plain error need not be

noticed and corrected if the error was harmless because it did not

actually affect the outcome of the proceedings.         United States v.

Smith, 441 F.3d 254, 272-73 (4th Cir. 2006) (declining to correct

error   where   evidence   of   drug   quantity   was   overwhelming   and

uncontroverted).     In this case, as the Government notes, the

evidence supporting the drug quantity was not overwhelming and

uncontroverted.     The record before us does not indicate what

sentence the court would have imposed on Servance had it exercised

discretion under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007) and

treated the guidelines as merely advisory. Although it is possible


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that Servance will receive the same sentence on remand, “[t]his

possibility is not enough to dissuade us from noticing the error.”

Hughes, 401 F.3d at 556.

           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 sentence must be “within the statutorily

prescribed range and . . . reasonable.”        Hughes, 401 F.3d at 547.

Specifically, district courts must (1) properly calculate the

sentence   range   recommended   by   the   Sentencing    Guidelines;   (2)

determine whether a sentence within that range and within statutory

limits serves the factors set forth in § 3553(a) and, if not,

select a sentence that does serve those factors; (3) implement

mandatory statutory limitations; and (4) articulate the reasons for

selecting the particular sentence, especially explaining why a

sentence outside of the Sentencing Guideline range better serves

the relevant sentencing purposes set forth in § 3553(a).           United

States v. Green, 436 F.3d 449, 455-56 (4th Cir. 2006).         A sentence

not imposed within the properly calculated range must be based on

the factors listed under § 3553(a).         Id. at 456.

           Accordingly, we affirm the convictions, but vacate the

sentence and remand for resentencing consistent with the rules




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announced in Booker.*         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




     *
      Just 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 Servance’s sentencing. Hughes,
401 F.3d at 545 n.4. See generally Johnson v. United States, 520
U.S. 461, 468 (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”).



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