                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-4813



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


SHIRLEY E. SMITH,

                                             Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Aiken. Cameron McGowan Currie, District Judge.
(CR-02-313)


Submitted:   March 11, 2005                 Decided:   March 3, 2006


Before LUTTIG, WILLIAMS, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Jill E. M. HaLevi, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, Kevin F. McDonald, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Shirley E. Smith was convicted after a jury trial of four

counts of making false statements, in violation of 18 U.S.C.

§ 1001(a)(2) (2000); one count of false declarations before a grand

jury or court, in violation of 18 U.S.C. § 1623 (2000); and two

counts of making or presenting false claims upon the United States,

in violation of 18 U.S.C. § 287 (2000).              The district court

sentenced Smith to twenty-seven months of imprisonment, two years

of supervised release, and a $700 special assessment. In her first

appeal, we affirmed Smith’s convictions, but vacated her sentence

and   remanded   for   resentencing.      United   States   v.   Smith,   No.

03-4467, 2004 WL 1729821 (4th Cir. Aug. 3, 2004) (unpublished).

Smith now appeals the sentence imposed by the district court on

remand.

           On remand, Smith objected to the presentencing report.

Relying upon the Supreme Court’s decision in Blakely v. Washington,

124 S. Ct. 2531 (2004), Smith asserted that all enhancements to her

base offense level should be removed because the facts supporting

those enhancements were not stipulated to or found by the jury.

           At the re-sentencing hearing the district court overruled

Smith’s Blakely objection and applied the guidelines in accordance

with this court’s direction in United States v. Hammoud, 378 F.3d

426 (4th Cir. 2004) (order), opinion issued by 381 F.3d 316, 353-54

(4th Cir. 2004) (en banc), petition for cert. granted, judgment


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vacated, 125 S. Ct. 1051 (2005).                 The district court imposed a

sentence of twenty-one months of imprisonment, the minimum of the

guideline range, two years of supervised release, and a $700

special assessment.           The district court declined, however, to

specify an alternative sentence as suggested in Hammoud.

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

Supreme Court applied Blakely’s rationale to the federal sentencing

guidelines. After severing two provisions of the Sentencing Reform

Act (18 U.S.C. § 3553(b)(1), requiring sentencing courts to impose

a sentence within the guideline range, and 18 U.S.C. § 3742(e),

setting forth standards of review on appeal), the Court held that

the guidelines remain as advisory only.              Sentencing courts are now

required to consider the applicable guideline range, but may

“tailor the sentence in light of other statutory concerns . . . .”

Booker, 125 S. Ct. at 757.

              In   this    case,   as    in   Booker,    Smith’s     sentence   was

determined     by   application      of    the    Guidelines    as   a    mandatory

determinant in sentencing. Although the district court stated that

it believed a twenty-one month sentence was appropriate in this

case,   the    court      specifically    declined      to   state   an   alternate

sentence if the Guidelines were merely advisory.                It is impossible

to determine on the present record whether the district court would

have chosen to sentence Smith to twenty-one months in the exercise

of its discretion.


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           We therefore again vacate the sentence imposed by the

district court and remand for reconsideration of the sentence in

accordance with Booker.   We deny the Government’s motion to remand

as moot.   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




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