                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4197



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DAMIEN DASHUNE DARDEN,

                                            Defendant - Appellant.


                            No. 04-4198



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


PATRICIA DARDEN,

                                            Defendant - Appellant.


                            No. 04-4199



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus
TINA DARDEN,

                                             Defendant - Appellant.


Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (CR-03-291)


Submitted:   August 26, 2005           Decided:   September 20, 2005


Before WILKINSON, LUTTIG, and KING, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


William J. Dinkin, DINKIN, PURNELL & JOHNSON, P.L.L.C., Richmond,
Virginia; Jennifer M. Newman, Richmond, Virginia; Keith B. Marcus,
BREMNER, JANUS & COOK, Richmond, Virginia, for Appellants. Paul J.
McNulty, United States Attorney, Michael J. Elston, Olivia N.
Hawkins, Assistant United States Attorneys, Alexandria, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

            In these consolidated appeals, Damien Dashune Darden,

Patricia Darden, and Tina Darden appeal their sentences imposed

following a jury trial.    Damien appeals his life sentence plus

sixty months for conspiracy to distribute fifty or more grams of

cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),

846 (2000), distribution of fifty grams or more cocaine base in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and conspiracy

to possess and possession of a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. §§ 924(c), 924(o).

Patricia appeals her 322-month prison sentence for conspiracy to

distribute five grams or more of cocaine base in violation of 21

U.S.C. §§ 841(a)(1), 846, possession of a firearm in furtherance of

a drug trafficking crime in violation of 18 U.S.C. § 924(c), and

maintaining a “crack house” in violation of 21 U.S.C. § 856.   Tina

appeals her 300-month prison sentence for conspiracy to distribute

fifty grams or more of cocaine base in violation of 21 U.S.C.

§§ 841(a)(1), 846, distribution of a detectable amount of cocaine

base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and

possession of a firearm in furtherance of a drug trafficking crime

in violation of 18 U.S.C. § 924(c).       Patricia and Tina also

challenge their drug conspiracy and firearms convictions, arguing

the evidence at trial was insufficient to support the jury’s

verdicts.


                               - 3 -
            The Dardens argue their sentences violated the Sixth

Amendment under Blakely v. Washington, 542 U.S. 296 (2004), because

they were enhanced based on judicial findings of drug quantity and,

in    Damien’s   case,   of   a   leadership    role   in   criminal    activity

involving five or more people or that was extensive.                   After the

Dardens filed their opening briefs, United States v. Booker, 125 S.

Ct. 738 (2005), issued, and Booker applies to these appeals.

Booker, 125 S. Ct. at 769 (citing Griffith v. Kentucky, 479 U.S.

314, 328 (1987)) (Booker applies to all cases pending on direct

review at the time it was decided).               Because the issues under

Blakely and Booker are raised or considered for the first time on

appeal, review is for plain error.             See United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005).        To establish error, the Dardens

must show that the court imposed a guideline sentence greater than

the maximum sentence authorized by the facts found by the jury or

admitted.    Booker, 125 S. Ct. at 746, 756; Hughes, 401 F.3d at 546-

47.    We find the district court committed plain error under Booker

and the Sixth Amendment in sentencing these appellants, and we

vacate their sentences and remand for resentencing in light of

Booker.1         Additionally,     we   affirm     Patricia’s     and     Tina’s

convictions.



       1
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “we of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of the Dardens’
sentencing.

                                     - 4 -
             Over each appellant’s objections, the district court set

the base offense level for each appellant at thirty-eight based on

1.5   kilograms      of    cocaine    base   attributed      to   the   Darden     drug

conspiracy,2      U.S.     Sentencing    Guidelines        Manual   §     2D1.1(c)(1)

(2003).      The district court added a four-level enhancement to

Damien’s offense level for his leadership role in the conspiracy,

USSG § 3B1.1(a). The total offense level for Damien was forty-two,

and with a criminal history category of IV, his sentencing range

was 360 months to life in prison.                The district court imposed a

sentence of life imprisonment on two counts, 240 months in prison

on another count, to run concurrently, and sixty months on the

firearms     count    to    run   consecutively      as    required     by    statute.

However, based solely on the jury’s verdict, Damien’s base offense

level would have been thirty-two, see USSG § 2D.1(c)(4) (level for

over fifty grams of cocaine base).                   With a criminal history

category     of   IV,      Damien’s     sentencing      range     absent      judicial

enhancements would have been 168 to 210 months, plus the sixty

months statutory mandatory minimum consecutive sentence on the

firearms charge.          Because Damien’s sentence of life imprisonment

plus sixty months is higher than the sentencing range based solely

on    the   jury’s   verdict,     we    find    plain     error   under      the   Sixth


       2
      Grouping rules under USSG §§ 3D1.1-3D1.2 were applied to
yield the base offense level of 38 based on the conspiracy count.
The firearms count against each defendant was not grouped because
it required a mandatory minimum consecutive prison sentence of
sixty months.

                                        - 5 -
Amendment    and   we   vacate    Damien’s      sentence   and      remand   for

resentencing.

            The district court calculated Patricia’s base offense

level as thirty-eight as noted above.               With a criminal history

category of II, the sentencing range was 262 to 327 months in

prison, plus sixty consecutive months in prison for the firearms

charge.     The district court sentenced Patricia to 262 months in

prison for the conspiracy count and 240 months on the crack house

count, to be served concurrently, and sixty months in prison on the

firearms count, to be served consecutively as required by law.

Patricia’s total sentence is 322 months in prison.             However, based

solely on the jury’s verdict of conspiracy to distribute more than

five (but less than fifty) grams of crack cocaine, Patricia’s base

offense level would be twenty-six.            USSG § 2D1.1(c)(7).       With a

criminal history category of II, her maximum sentence authorized by

the verdict would be seventy to eighty-seven months, plus the sixty

month statutory minimum consecutive sentence for the firearms

charge, for a total maximum sentence of 147 months.                     Because

Patricia’s sentence of 322 months in prison exceeds the maximum

sentence authorized by the jury, we find plain error under the

Sixth Amendment and we vacate Patricia’s sentence and remand for

resentencing.      However,      we   find    the   evidence   at    trial   was

sufficient to support the jury verdict against Patricia on the




                                      - 6 -
conspiracy     and   firearms    counts,   and    we   affirm   Patricia’s

convictions.

            The district court also calculated Tina’s base offense

level as thirty-eight as noted above.            With a criminal history

category of I, the sentencing range was 235 to 293 months in

prison, plus sixty consecutive months in prison for the firearms

charge.    The district court sentenced Tina to 240 months in prison

on the drug conspiracy count and 235 months in prison on the crack

distribution count, to run concurrently, and sixty months in prison

on the firearms count, to run consecutively as required by statute.

Tina’s total sentence is 300 months.        Based solely on the jury’s

verdict, Tina’s base offense level would have been thirty-two.

USSG § 2D.1(c)(4).     With a criminal history category of I, Tina’s

sentencing range would be 121 to 151 months in prison.          Adding the

mandatory minimum consecutive sentence of sixty months on the

firearms count, the maximum sentence for Tina authorized by the

jury verdict would be 211 months in prison.               Because Tina’s

sentence of 300 months in prison exceeds 211 months, we find plain

error under the Sixth Amendment and we vacate Tina’s sentence and

remand for resentencing.        However, we find the evidence at trial

was sufficient to support Tina’s jury convictions on the conspiracy

and firearms counts, and we affirm Tina’s convictions.

            Accordingly, we affirm the convictions of Patricia and

Tina.     We vacate Damien’s, Patricia’s and Tina’s sentences and


                                   - 7 -
remand for resentencing in light of Booker.3   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 AND REMANDED IN PART




     3
      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.
See 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) (2000), 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) (2000).     Id.   The sentence must be “within the
statutorily prescribed range . . . and reasonable.” Id. at 546-47.

                              - 8 -
