UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4703

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GARY STEVEN ALLMOND,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. Frank W. Bullock, Jr.,

District Judge. (CR-04-12; CR-04-58; CR-04-59; CR-04-60; CR-04-61)

Submitted: June 15, 2005 Decided: July 14, 2005

Before LUTTIG and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

William L. Osteen, Jr., ADAMS & OSTEEN, Greensboro, North Carolina,

for Appellant. Kearns Davis, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Gary Steven Allmond appeals his convictions and ninetymonth sentence imposed following his guilty plea to five counts of

bank robbery, in violation of 18 U.S.C. § 2113(a) (2000).

Allmond’s attorney filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), raising sentencing issues under

Blakely v. Washington, 124 S. Ct. 2531 (2004), but stating that, in

his view, there were no meritorious grounds for appeal. Following

the Supreme Court’s decision in United States v. Booker, 125 S. Ct.

738 (2005), we gave the parties an opportunity to submit

supplemental briefing discussing the impact of the Booker decision

on the case. Counsel now argues that Booker requires that the case

be remanded to the district court for imposition of a new sentence.

Allmond has filed a one-page pro se supplemental letter, informing

the court that he objects to a three-level enhancement imposed for

use of a weapon pursuant to U.S. Sentencing Guidelines Manual

§ 2B3.1(b)(2) (2003). For the reasons discussed below, we vacate

Allmond’s sentence and remand for resentencing in light of Booker.

In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the

court, by a preponderance of the evidence, violated the Sixth

Amendment. 125 S. Ct. at 746, 750 (Stevens, J., opinion of the

Court). The Court remedied the constitutional violation by
1Just 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 Allmond’s sentencing.

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severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West

Supp. 2005) (requiring sentencing courts to impose a sentence

within the applicable guideline range), and 18 U.S.C.A. § 3742(e)

(West 2000 & Supp. 2005) (setting forth appellate standards of

review for guideline issues), thereby making the guidelines

advisory. Id. at 756-57 (Breyer, J., opinion of the Court).

Based on our review of the record, we find that Allmond’s

sentence was enhanced based on facts that were not admitted by him

nor proved to a jury beyond a reasonable doubt. Thus, pursuant to

Booker, we find that Allmond’s sentence was imposed in violation of

the Sixth Amendment and note that the district court also erred in

treating the guidelines as mandatory.1 We therefore vacate

Allmond’s sentence and remand for resentencing consistent with the

Booker decision.

We note that counsel raises one additional Blakely issue

in his initial Anders brief, contending that the district court’s

calculation of Allmond’s criminal history category was

unconstitutional. Citing Almendarez-Torres v. United States, 523

U.S. 224 (1998), counsel argues that determinations involving

criminal history points go well beyond the mere “fact of a prior
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conviction” and therefore must be admitted by the defendant or

found by a jury beyond a reasonable doubt.

In Almendarez-Torres, the Supreme Court held that “the

government need not allege in its indictment and need not prove

beyond reasonable doubt that a defendant had prior convictions for

a district court to use those convictions for purposes of enhancing

a sentence.” In Apprendi v. New Jersey, 530 U.S. 466, 490 (2005),

the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi did not overrule

Almendarez-Torres and the Court recently reaffirmed its holding in

Apprendi. See Booker, 125 S. Ct. at 756. Moreover, our review of

the record reveals that the district court’s assessment of criminal

history points was based on the summary of the convictions in

Allmond’s presentence report and merely involved consideration of

the sentence imposed for each conviction. Accordingly, we conclude

that the district court properly considered Allmond’s prior

sentences in calculating his criminal history category. See United

States v. Washington, 404 F.3d 834 (4th Cir. 2005). We therefore

reject this remaining sentencing claim.

 In accordance with Anders, we have reviewed the entire

record in this case. Although we affirm Allmond’s convictions, we

vacate the sentence and remand for resentencing in light of
2Although 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 United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)

(applying Booker on plain error review). The court should consider

this sentencing range along with the other factors described in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), 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.A. § 3553(c)(2) (Supp. 2005). Id. The

sentence must be “within the statutorily prescribed range and . . .

reasonable.” Id. at 546-47.

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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 AND REMANDED IN PART