UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-5056

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TODD ARTHUR LECADRE, a/k/a Xavier Eric

Rodriguez, a/k/a Xavier Diaz, a/k/a Xavier

Eric Rodriguez, Jr.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Newport News. Raymond A. Jackson,

District Judge. (CR-04-88)

Submitted: July 27, 2005 Decided: August 15, 2005

Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

James O. Broccoletti, ZOBY & BROCCOLETTI, P.C., Norfolk, Virginia,

for Appellant. Paul J. McNulty, United States Attorney, Vincent L.

Gambale, Assistant United States Attorney, Timothy R. Murphy,

Special Assistant United States Attorney, Newport News, Virginia,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*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 Lecadre’s sentencing. See generally Johnson v. United

States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”

if “the law at the time of trial was settled and clearly contrary”

to the law at the time of appeal).

- 2 -

PER CURIAM:

Todd Arthur Lecadre pled guilty, without a plea

agreement, to conspiracy to possess with intent to distribute and

to distribute 50 or more grams of crack cocaine, 21 U.S.C. § 846

(2000), and distribution of 52.3 grams of crack cocaine, 21 U.S.C.

§ 841 (2000). The district court sentenced Lecadre to 108 months

imprisonment on each count, to run concurrently. The court also

announced an alternative sentence, in the absence of the federal

sentencing guidelines, of 48 months imprisonment on each count, to

run concurrently. 

Lecadre has appealed, challenging his sentence under the

Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738

(2005). We conclude that Lecadre is entitled to be resentenced

under Booker, as the Government concedes.* 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 (applying
- 3 -

plain error analysis to challenge under Booker). 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.

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 547. 

As Lecadre raises no other issues on appeal, we affirm

his conviction and vacate the sentence imposed by the district

court. 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 IN PART,

 AND REMANDED