UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4802

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DESMOND OLLIVIERRE, a/k/a James Franklin

Bridges,

Defendant - Appellant.

On Remand from the United States Supreme Court.

(S. Ct. No. 04-7096)

Submitted: October 17, 2005 Decided: November 22, 2005

Before WILLIAMS and KING, Circuit Judges, and Louise W. FLANAGAN,

Chief United States District Judge for the Eastern District of

North Carolina, sitting by designation.

Vacated and remanded by unpublished per curiam opinion.

John H. Hare, Assistant Federal Public Defender, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant.

Jonathan S. Gasser, Acting United States Attorney, Marshall Prince,

Assistant United States Attorney, Jimmie C. Ewing, OFFICE OF THE

UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

On August 13, 2004, this court affirmed Desmond

Ollivierre’s conviction and sentence. See United States v.

Ollivierre, 378 F.3d 412 (4th Cir. 2004). On January 24, 2005, the

Supreme Court of the United States granted Ollivierre’s petition

for writ of certiorari, vacated our judgment, and remanded the case

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 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 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, 543 U.S. at ___, 125 S. Ct. at

756.

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

we held that a sentence imposed under the pre-Booker mandatory

sentencing scheme that was enhanced based on facts found by the
1

The convictions were affirmed in our prior opinion and are

not before us now.

2Just 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 Ollivierre’s

sentencing.

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court, not by a jury, 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

fact-finding to determine Ollivierre’s offense level and the

resulting guideline range was imposed in a mandatory manner, there

was a Sixth Amendment violation under Booker.1 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.2 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