                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4629



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


MAGUESTE PLASIMOND, a/k/a Tyrone,

                                            Defendant - Appellant.


         On Remand from the United States Supreme Court.
                        S. Ct. No. 04-6218


Submitted:   September 19, 2005       Decided:   September 27, 2005


Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, D. Scott Broyles, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Magueste Plasimond appeals his conviction for conspiracy

to possess with intent to distribute cocaine in violation of 21

U.S.C. § 846 (2000), and for aiding and abetting possession with

intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1)

(2000).    We affirm his conviction, but vacate his sentence and

remand for resentencing in light of United States v. Booker, 125 S.

Ct. 738 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.

2005).

               Plasimond contends that the district court improperly

sentenced him when it imposed a sentence greater than the maximum

authorized by the facts he admitted to in his guilty plea.             Because

he failed to raise this claim below, we review it for plain error.

Hughes, 401 F.3d at 547.

               Plasimond pled guilty to possession of an unspecified

amount    of    cocaine.     At   sentencing,    the   district    court   held

Plasimond accountable for three kilograms of cocaine base for a

base offense level of thirty-eight under U.S. Sentencing Guidelines

Manual § 2D1.1(c)(1) (2004).         The district court subtracted three

offense    levels     for   acceptance   of     responsibility     under   USSG

§ 3E1.1(a).        With a total offense level of thirty-five and a

criminal history category of I, resulting in a guideline range of

168-210    months’     imprisonment,     the    district   court     sentenced

Plasimond to 168 months’ imprisonment.


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            The    district       court’s      drug    quantity    factual         findings

provided the basis for a sentence that exceeded the sentence that

could have been imposed based only on the facts Plasimond admitted

to in his guilty plea.             The district court erred in basing the

sentence on judge-found facts under a mandatory guidelines regime,

and the error was plain.*              Hughes, 401 F.3d at 547-48.                  Because

Plasimond’s sentence was longer than what could have been imposed

based on the guilty plea alone, the error affected his substantial

rights, id. at 548, and we will notice the error, id. at 555.

Therefore, Plasimond must be resentenced.

            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 the 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



     *
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Plasimond’s sentencing.


                                         - 3 -
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.

           We affirm Plasimond’s conviction. In light of Booker and

Hughes, we vacate Plasimond’s sentence and remand for resentencing.

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
                                                   AND REMANDED IN PART




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