UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4926

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DAVID LYNCH,

Defendant - Appellant.

On Remand from the United States Supreme Court.

(S. Ct. No. 04-7445)

Submitted: September 7, 2005 Decided: September 29, 2005

Before WIDENER, LUTTIG, and KING, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

James R. Fox, ROMANO LAW OFFICE, Clarksburg, West Virginia, for

Appellant. Thomas E. Johnston, United States Attorney, Stephen D.

Warner, Assistant United States Attorney, Elkins, West Virginia,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

On June 22, 2004, this court affirmed David Lynch’s

sentence. See United States v. Lynch, No. 03-4926, 2004 WL 1385862

(4th Cir. June 22, 2004) (unpublished). On January 25, 2005, the

Supreme Court of the United States granted Lynch’s petition for

writ of certiorari, vacated this court’s judgment and remanded back

to this court for further consideration in light of United

States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005). We vacate

the sentence and remand for resentencing. 

In Booker, the Supreme Court held that Blakely v.

Washington, 542 U.S. 296 (2004), applied to the federal sentencing

guidelines and that the mandatory manner in which the guidelines

required courts to impose sentencing enhancements based on facts

found by the court by a preponderance of the evidence violated the

Sixth Amendment. Thus, when a defendant pleads guilty and is

sentenced under the mandatory guidelines scheme, “[a]ny fact (other

than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea

of guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at

756. Because Lynch did not raise this claim below, we review for

plain error. See United States v. Hughes, 401 F.3d 540, 547 (4th

Cir. 2005).
*Just as we noted in United States v. Hughes, 401 F.3d 540,

545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the

district judge, who followed the law and procedure in effect at the

time” of Lynch’s sentencing. 

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In Hughes, we held that a sentence imposed under the preBooker mandatory sentencing scheme that was enhanced based on facts

found by the court, not by a jury (or, in a guilty plea case,

admitted by the defendant), constitutes plain error. That error

affects the defendant’s substantial rights and warrants reversal

under Booker when the record does not disclose what discretionary

sentence the district court would have imposed under an advisory

guideline scheme. Hughes, 401 F.3d at 546-56. 

Because the district court engaged in judicial factfinding to determine Lynch’s offense level and the resulting

guideline range was imposed in a mandatory manner, there was a

Sixth Amendment violation under Booker. On remand, the court must

calculate the appropriate guideline range, consider the range in

conjunction with other relevant factors under the guidelines and 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a sentence.

If a court imposes a sentence outside the guideline range, the

district court must state its reasons for doing so. Hughes, 401

F.3d at 546. 

Accordingly, we vacate the sentence and remand for

further consideration in light of 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. 

VACATED AND REMANDED