UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4423

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

ROBERT EARL LOWRY,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle,

District Judge. (2:02-cr-00013-BO)

Submitted: November 30, 2006 Decided: January 25, 2007

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

George E. B. Holding, Acting United States Attorney, Anne M. Hayes,

Christine Witcover Dean, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellant. Kelly L. Greene, STUBBS &

PERDUE, P.A., New Bern, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

The government appeals the sentence imposed on Robert

Earl Lowry after we remanded his case for resentencing in light of

United States v. Booker, 543 U.S. 220 (2005). We agree that the

district court misconstrued our opinion and erred by failing to

make factual findings concerning the drug quantity to be attributed

to Lowry in calculating the advisory guideline range. We therefore

vacate the sentence and remand for resentencing.

Lowry sold crack to a confidential informant twice in

early 2001. The total amount sold was 5.4 grams. About the same

time, Lowry made an unprotected admission to a law enforcement

officer that he sold $12,000 worth of crack (120 grams) for

supplier Gabriel Stitt. In 2002, Lowry was charged with two counts

of crack distribution (Counts One and Three), one count of

possessing a firearm in furtherance of a drug trafficking crime

(Count Two), and one count of being a felon in possession of a

firearm (Count Four). Lowry pled guilty to the felon-in-possession

count, went to trial on the remaining counts, and was convicted.

The indictment did not charge a specific quantity of crack, and the

jury did not make a finding as to the amount of crack involved. 

At sentencing, Lowry was held responsible for 125.4 grams

of crack, which gave him a base offense level of 32. He was in

criminal history category II. The guideline range for the drug

offenses was 135-168 months. The range for the felon-in-possession
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count was 120 months, the statutory maximum. Lowry was sentenced

to a term of 168 months on Counts One and Three, a concurrent term

of 120 months on Count Four, and a consecutive term of sixty months

on Count Two. We affirmed the conviction and sentence. United

States v. Lowry, 116 F. App’x 446 (4th Cir. Nov. 22, 2004) (No. 03-

4856). 

The Supreme Court later vacated our judgment and remanded

for reconsideration in light of Booker. After reconsidering the

case in light of Booker and United States v. Hughes, 401 F.3d 540

(4th Cir. 2005), we vacated the sentence on Counts One, Three, and

Four, and remanded for resentencing, finding that the sentence was

plainly erroneous because it exceeded the maximum guideline range

that could have applied based on the jury’s verdict that Lowry

distributed an indeterminate quantity of crack. Our opinion

discussed the nature of the Sixth Amendment error at some length,

as well as a possible alternative grouping of the pertinent counts,

before deciding that the error affected Lowry’s substantial rights.

The opinion concluded by remanding Lowry’s case for resentencing

and, citing Booker and Hughes, directed the district court to

“first determine the appropriate sentencing range under the

Guidelines, making all factual findings appropriate for that

determination. . . . [Next] consider this sentencing range along

with the other factors described in 18 U.S.C. § 3553(a) (2000), and
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then impose a sentence.” United States v. Lowry, 164 F. App’x 314,

316 (4th Cir. Jan. 6, 2006) (No. 03-4856).

On remand, the district court was persuaded that our

opinion mandated the use of an offense level that was based on an

indeterminate quantity of crack. This view, put forward by defense

counsel, misconstrued the opinion. In imposing a sentence after

Booker, courts still must calculate the applicable advisory

guideline range after making the appropriate findings of fact and

consider the range in conjunction with other relevant factors under

the guidelines and § 3553(a). Hughes, 401 F.3d at 546; United

States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126

S. Ct. 2054 (2006). On remand, applying the guidelines as

advisory, the district court was required to determine the

guideline range by making whatever factual findings were necessary,

and was not restricted by the fact that the jury had not been asked

to determine the specific quantity of crack for which Lowry was

responsible for sentencing purposes. The court’s failure to do so,

based on its misinterpretation of this court’s opinion remanding

the case, renders the sentence unreasonable.

We therefore vacate the sentence imposed by the district

court and remand for resentencing. In resentencing Lowry, the

district court should determine the quantity of crack for which
*See United States v. Revels, 455 F.3d 448, 451 n.2 (4th Cir.)

(standard of review), cert. denied, 127 S. Ct. 299 (2006); United

States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (same), cert.

denied, 127 S. Ct. 121 (2006).

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Lowry is responsible by a preponderance of the evidence* and then

calculate the appropriate advisory guideline range. 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.

VACATED AND REMANDED