                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-4896



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RICK BARTON, SR.,

                                             Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-9022)


Submitted:   January 27, 2006                 Decided:   May 3, 2006


Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


A. Benton Chafin, Jr., CHAFIN LAW FIRM, P.C., Lebanon, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
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Unpublished opinions are not binding precedent in this circuit.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 our prior opinion, we

affirmed Barton’s convictions on six counts of conspiracy, drug

distribution, and firearms offenses, and the resulting 1170-month

sentence.      United States v. Barton, 116 F. App’x 460 (4th Cir.

2004), vacated, 126 S. Ct. 39 (2005).            After reviewing Barton’s

appeal in light of Booker, we affirm his convictions for the

reasons stated in our prior opinion, vacate his sentence, and

remand for resentencing.

              Barton does not challenge on Sixth Amendment grounds his

sentences on the four firearms counts,1 and we find no Booker error

in    those    statutorily-mandated     sentences.         See    18    U.S.C.

§    924(c)(1)(C)(i)     (2000).    However,   Barton     asserts,     and   the

Government concedes, that his Sixth Amendment rights were violated

because the district court imposed a four-level enhancement for his

role as a leader or organizer in the offense, pursuant to U.S.

Sentencing Guidelines Manual (USSG) § 3B1.1 (2002), based on facts

not found by a jury or admitted by Barton.          Because Barton did not

raise the Sixth Amendment issue in the district court, we review



       1
      Barton does reassert his argument that the district court
erred in allowing his conviction for four § 924(c) violations when
he was charged with only one predicate drug offense. We reject
this argument for the reasons stated in our original opinion.

                                    - 2 -
for plain error.       See United States v. Hughes, 401 F.3d 540, 547

(4th Cir. 2005). To demonstrate plain error, Barton 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, this court’s “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. 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.         125    S. Ct. at 746 (Stevens, J., opinion

of the Court);        125 S. Ct. at 756-67 (Breyer, J., opinion of the

Court).

            Here, the district court sentenced Barton under the

mandatory federal Sentencing Guidelines by applying an enhancement

for Barton’s role in the offense based on factual findings made by

the court, yielding a sentencing range of 210-262 months for the


                                       - 3 -
conspiracy        and   distribution       convictions.        Excluding   this

enhancement, Barton’s total offense level on these counts would

have been thirty.       See USSG § 2D1.1(c)(5).       With a criminal history

category of IV, the resulting guideline range would be 135 to 168

months of imprisonment.        USSG Ch. 5, Pt. A (Sentencing Table).           The

210-month sentence Barton received on these counts is longer than

the maximum of 168 months the district court could have imposed

based solely on facts found by the jury.              See Hughes, 401 F.3d at

548.       We    conclude   that   the    district   court’s   plain   error    in

sentencing Barton based on facts found by the court and not the

jury affects his substantial rights and warrants correction.2

                Accordingly, we affirm Barton’s convictions, but vacate

his sentence and remand for resentencing.             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.’”             United States v. Gray, 405

F.3d 227, 244 n.10 (4th Cir. 2005), cert. denied 126 S. Ct. 275

(2005) (quoting Booker, 125 S. Ct. at 767).               In determining the

appropriate sentence on remand,

       the district court 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


       2
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Barton’s sentencing. 401 F.3d at 545
n.4.

                                         - 4 -
      range along with the other factors described in 18 U.S.C.
      § 3553(a), 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). Hughes, 401 F.3d at 546. The
      sentence must be    “within the statutorily prescribed
      range and . . . reasonable.” Id. at 547.

Id.

      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




                               - 5 -
