                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4668



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL LEE LAMPKINS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-04-15)


Submitted:   September 30, 2005           Decided:   November 3, 2005


Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Michael A. Bragg, BRAGG LAW, P.L.C., Abingdon, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Jennifer R.
Bockhorst, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Michael Lee Lampkins appeals his conviction and sentence

imposed for manufacturing methamphetamine, in violation of 21

U.S.C. § 841(a)(1)(2000), and maintaining a place for the purposes

of   manufacturing      methamphetamine,       in   violation   of   21   U.S.C.

§    856(a)(1)      (2000).       Including    several    enhancements,      the

Presentence Report (“PSR”) reflected an applicable guidelines range

was 78-97 months’ imprisonment.          In written objections to the PSR,

Lampkins asserted that the judicial enhancements listed in the PSR

violated his Sixth Amendment rights under Blakely v. Washington,

542 U.S. 296 (2004).

            At sentencing, Lampkins objected to the amount of drugs

attributed to him.       The district court rejected these claims, and

adopted the drug quantities as listed in the PSR.                The district

court sentenced Lampkins to seventy-eight months in prison, and in

light of United States v. Hammoud, 378 F.3d 426 (4th Cir.) (order),

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

cert. granted and judgment vacated, 125 S. Ct. 1051 (2005), imposed

an alternative sentence of forty-eight months. On appeal, Lampkins

objects to the district court’s calculation of drug quantity and

imposition of an enhancement for creating a substantial risk of

harm   to   human    life     under   United   States   Sentencing   Guideline

§ 2D1.1(b)(5)(B).




                                       - 2 -
           Because Lampkins objected in the district court to the

guidelines calculation under Blakely, he need not establish plain

error.   Cf. United States v. White, 405 F.3d 208 (4th Cir. 2005);

United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).   Under Fed.

R. Crim. P. 52(a), however, “[a]ny error . . . that does not affect

substantial rights must be disregarded.”   After careful review of

the record, we conclude that Lampkins suffered no Sixth Amendment

violation because Lampkins stipulated to the adjusted offense level

as part of his plea agreement.     Thus the facts underlying the

attributable amount of drugs and the risk of harm enhancement were

admitted, and not based on impermissible judicial fact-finding.

           Lampkins also raises the issue of the legality of the

mandatory application of the Guidelines. Assuming without deciding

that Lampkins’ claim is subject to plain error review, we conclude

that the district court plainly erred in its mandatory application

of the Sentencing Guidelines.1   Hughes, 401 F.3d at 553 (holding

that sentencing under a mandatory regime is “a separate class of

error . . . distinct from the Sixth Amendment claim that gave rise

to the decision in Booker” and that “[t]his error . . . may be

asserted even by defendants whose sentences do not violate the

Sixth Amendment.”). Moreover, because the district court expressly

stated that under an advisory sentencing scheme, it would have


     1
      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 Lampkins’ sentencing.

                               - 3 -
imposed a lower sentence of forty-eight months, we conclude that

Lampkins’ seventy-eight-month sentence affected his substantial

rights and we exercise our right to note the error on appeal.

Accordingly,   we   affirm   Lampkins’      conviction,    but   remand   for

resentencing   consistent    with    Booker.2    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




     2
      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 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.
§ 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). Id. The
sentence must be “within the statutorily prescribed range and . .
. reasonable.” Id. at 547 (citation omitted).

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