                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 03-4832



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


HENRY HILL, SR.,

                                               Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-7501)


Submitted:   October 7, 2005              Decided:   December 20, 2005


Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Craig W. Sampson, SAMPSON LAW FIRM, P.L.C., Richmond, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Sara E. Flannery, Assistant United States Attorneys,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            This case is before us on remand from the United States

Supreme   Court     for    further      consideration      in   light   of    United

States v. Booker, 125 S. Ct. 738 (2005).            In United States v. Hill,

No. 03-4832 (4th Cir. July 29, 2004) (unpublished), vacated, 125

S. Ct. 1085 (2005), we affirmed Hill’s conviction and 188-month

sentence imposed by the district court after a jury convicted Hill

of conspiracy to distribute and possess with intent to distribute

less than five grams of crack cocaine, in violation of 21 U.S.C.

§ 846 (2000).      After reviewing Hill’s appeal in light of Booker, we

affirm Hill’s conviction for the reasons stated in our prior

opinion, vacate Hill’s sentence, and remand for resentencing.

            Hill    contends     that    his    sentence    violates    the   Sixth

Amendment   because       the   district    court   at     sentencing    held   him

accountable for thirty-three grams of crack and enhanced his

sentence for obstruction of justice.             Because Hill did not raise a

Sixth Amendment issue in the district court, we review for plain

error.1   See United States v. Hughes, 401 F.3d 540, 547 (4th Cir.


     1
      The Government asserts that Hill waived appellate review of
his Sixth Amendment challenge to his sentence by failing to raise
it in his initial brief before this court. Although the Government
correctly states the general rule, see United States v. Al-Hamdi,
356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It is a well settled rule
that contentions not raised in the argument section of the opening
brief are abandoned.”), we decline to enforce it in light of our
order directing the parties to file supplemental briefs addressing
Booker. See United States v. Washington, 398 F.3d 306, 312 n.7
(4th Cir.) (stating that “[a]lthough appellate contentions not
raised in an opening brief are normally deemed to have been waived,

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2005).    To demonstrate plain error, Hill must establish that error

occurred, that it was plain, and that it affected his substantial

rights.      Id.   at   547-48.   If   a   defendant   satisfies   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.”      Id. at 555 (internal quotation marks and citation

omitted).

            In Booker, the Supreme Court held that the mandatory

manner in which the Sentencing Guidelines required courts to impose

sentencing enhancements based on facts found by the court by a

preponderance of the evidence violated the Sixth Amendment. 125 S.

Ct. at 746, 750 (Stevens, J., opinion of the Court).         The Court

remedied the constitutional violation by making the Guidelines

advisory through the removal of two statutory provisions that had

rendered them mandatory.     Id. at 746 (Stevens, J., opinion of the

Court); id. at 756-67 (Breyer, J., opinion of the Court).




the Booker principles apply in this proceeding because the
[Supreme] Court specifically mandated that we must apply [Booker]
. . . to all cases on direct review.”) (internal quotation marks
and citations omitted), cert. denied, 125 S. Ct. 2558 (2005);
United States v. James, 337 F.3d 387, 389 n.1 (4th Cir. 2003)
(“Because [this] court requested . . . additional briefing, this
case is not governed by our rule that arguments not raised in the
appellant’s opening brief are typically deemed abandoned on
appeal.”), cert. denied, 540 U.S. 1134 (2004).

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            Here,    the    district     court   sentenced    Hill   under    the

mandatory    federal       Sentencing    Guidelines   by     determining     drug

quantity, applying an obstruction of justice enhancement, and

departing from criminal history category V to VI.              These findings

yielded a Sentencing Guideline range of 168 to 210 months of

imprisonment, and the court sentenced Hill to a 188-month term of

imprisonment.       Using only the amount of drugs found by the jury

(less than five grams of crack cocaine) without the enhancement for

obstruction of justice,2 Hill’s offense level would have been

twenty-four.     See U.S. Sentencing Guidelines Manual § 2D1.1(c)(8)

(2002).     The resulting Guideline range would be 100 to 125 months

of imprisonment.       USSG Ch. 5, Pt. A (Sentencing Table).          In light

of Booker and Hughes, we find that the district court’s plain error

in sentencing Hill based on facts found by the court affects his

substantial rights and warrants correction.3

            Accordingly, we vacate Hill’s sentence and remand for

resentencing.4      We also affirm Hill’s conviction.         We dispense with


     2
      We take no position on whether the district court’s upward
departure from criminal history category V to VI violates the Sixth
Amendment because, even assuming a criminal history category of VI,
Hill is entitled to be resentenced.
     3
      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 Hill’s sentencing.
     4
      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.” 125 S. Ct. at 767
(Breyer, J., opinion of the Court). On remand, the district court

                                        - 4 -
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




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. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &
Supp. 2005).   Hughes, 401 F.3d at 546.     The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.

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