                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-4494



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JAMES BROWN, a/k/a 6-9,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Charles H. Haden II,
District Judge. (CR-02-189)


Submitted:   April 15, 2005                 Decided:    May 31, 2005


Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Barron M. Helgoe, VICTOR, VICTOR & HELGOE, L.L.P., Charleston, West
Virginia, for Appellant.    Kasey Warner, United States Attorney,
Ronald G. Morgan, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          James Brown pled guilty to one count of possession with

intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) (2000), and one count of simple assault on a federal

officer, in violation of 18 U.S.C. § 111(a)(1) (2000).   He appeals

his sentence.   We affirm Brown’s conviction, vacate his sentence,

and remand for further sentencing proceedings in light of United

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

Hughes, 401 F.3d 540 (4th Cir. 2005).

          On appeal, Brown contends that the district court erred

in including in the quantity of drugs attributed to him drugs

mentioned in non-immunized, post arrest statements that he made to

state law enforcement officers prior to the date of filing of the

federal charges of which he was convicted.    He argues that U.S.

Sentencing Guidelines Manual § 1B1.8 (2003), mandates that the drug

quantities he disclosed to the state law enforcement officers

should have been excluded from his relevant conduct because his

disclosures were made pursuant to a plea agreement.

          Brown has also filed supplemental briefs in which he

asserts error in his sentence based upon the United States Supreme

Court’s opinions in Blakely v. Washington, 124 S. Ct. 2351 (2004),

and United States v. Booker. Specifically, he asserts error in the

judicial fact-finding employed by the district court judge in

adding relevant conduct of 524.1375 grams of self-disclosed cocaine


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base weight onto the convicted amount of cocaine base, which was

only .12 grams, which had the effect of increasing his sentencing

range under the Guidelines from fifteen to twenty-one months to

235-240 months’ imprisonment.                He further asserts error in the

district court’s enhancement of his base offense level on the

assault charge from six to nine, with an attendant increase in

Guidelines range from two to eight months to eight to fourteen

months’ imprisonment.            The United States has filed a supplemental

brief   in     which    it   states     that    it     does   not    oppose   Brown’s

resentencing.      We review factual findings made by the district

court    for    clear     error,     while     legal    interpretations       of   the

Guidelines are reviewed de novo.               See United States v. Blake, 81

F.3d 498, 503 (4th Cir. 1996); United States v. Daughtrey, 874 F.2d

213, 217 (4th Cir. 1989).

             It is clear that the district court sentenced Brown based

on the then-existing law under which application of the Guidelines

was mandatory.     In light of the Supreme Court’s decision in Booker

and this court’s decision in Hughes, we find that the mandatory

application of the Guidelines in this case was plainly erroneous.

Hughes, 401 F.3d at 547-48.

             Accordingly, we affirm Brown’s conviction, vacate his

sentence, and remand for further sentencing proceedings in light of

the standards articulated in Booker and Hughes.                     We dispense with

oral    argument       because    the   facts    and     legal      contentions    are


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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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