UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4246

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SOLOMON LOUIS BROOKS, a/k/a Anthony Jerome

Foster, a/k/a Alvin, a/k/a Darvis Shamburger,

a/k/a Berry Davis,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Claude M. Hilton, Chief

District Judge. (CR-03-374-A)

Submitted: August 1, 2005 Decided: August 30, 2005

Before WILLIAMS, TRAXLER, and SHEDD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for

Appellant. Paul J. McNulty, United States Attorney, Dennis M.

Kennedy, Assistant United States Attorney, Alexandria, Virginia,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Solomon Louis Brooks was convicted by a jury of

interstate transportation of stolen motor vehicles (two counts), 18

U.S.C. § 2312 (2000), possession/concealment of stolen motor

vehicles (two counts), 18 U.S.C. § 2313 (2000), and false

representation of social security number (one count), 42 U.S.C.

§ 408(a)(7)(b) (2000). He was sentenced to eighty-four months’

imprisonment. On appeal, he argues that the district court erred

in allowing the prosecution to introduce evidence regarding his use

of aliases. He further seeks remand for resentencing on the ground

that his sentence violates his Sixth Amendment rights under United

States v. Booker, 125 S. Ct. 738 (2005). For the following

reasons, we affirm Brooks’ conviction and vacate and remand for

resentencing. 

Brooks first argues that the district court erred in

allowing the Government to present evidence of his use of false

names in connection with the charged conduct. Review of a district

court’s determination of the admissibility of evidence under Rule

404(b) is for abuse of discretion. See United States v. Queen, 132

F.3d 991, 995 (4th Cir. 1997). A district court will not be found

to have abused its discretion unless its decision to admit evidence

under Rule 404(b) was arbitrary or irrational. United States v.

Haney, 914 F.2d 602, 607 (4th Cir. 1990). Where testimony is

admitted as to acts intrinsic to the crime charged, and is not
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admitted solely to demonstrate bad character, it is admissible.

United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996). Acts are

intrinsic when they are “inextricably intertwined or both acts are

part of a single criminal episode or the other acts were necessary

preliminaries to the crime charged.” Id. (quoting United States v.

Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993)). In addition,

evidence of other crimes or uncharged conduct is “not considered

‘other crimes’” for Rule 404(b) purposes if it “‘arose out of the

same . . . series of transactions as the charged offense, . . . or

if it is necessary to complete the story of the crime [on] trial.’”

United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (quoting

United States v. Towne, 870 F.2d 880, 886 (4th Cir. 1989)). We

find no abuse of discretion in the court’s admission of the

evidence.

Citing Booker, Brooks also argues that his sentence was

imposed in violation of his Sixth Amendment right to a jury. This

issue is raised on appeal for the first time and, thus, is reviewed

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

Cir. 2005). The district court sentenced Brooks under the federal

sentencing guidelines to eighty-four months’ imprisonment. This

sentence included a twelve-level enhancement for the amount of loss

exceeding $200,000, and a two-level enhancement for being in the

business of receiving or selling stolen property. Brooks contests

the application of these enhancements because the facts underlying
1Just as we noted in Hughes, “[w]e of course offer no

criticism of the district judge, who followed the law and procedure

in effect at the time” of Brooks’ sentencing. 401 F.3d at 545 n.4.

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the enhancements were found by the district court by a

preponderance of the evidence and were neither charged in the

indictment nor proven by the jury beyond a reasonable doubt. 

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 making the

Guidelines advisory through the removal of two statutory provisions

that had rendered them mandatory. Id. at 746 (Stevens, J., opinion

of the Court); id. at 756-57 (Breyer, J., opinion of the Court).

Subsequently, we held that sentencing a defendant to a

significantly longer term of imprisonment than the district court

could have imposed based solely on the facts found by the jury or

admitted by the defendant, constituted plain error. Hughes, 401

F.3d at 547-56. 

Here, a sentence based solely on the facts found by the

jury would have been at least sixty months less than the term of

imprisonment to which Brooks was sentenced. Accordingly, in light

of Booker and Hughes, we find that the district court plainly erred

in sentencing Brooks.1 Therefore, we affirm Brooks’ conviction,
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

Although the Guidelines no longer are 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

(Breyer, J., opinion of the Court). On remand, the district court

should first determine the appropriate sentencing range under the

Guidelines, making all factual findings appropriate for that

determination. Hughes, 401 F.3d at 546. 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. Hughes, 401 F.3d at 546. If that sentence falls outside

the Guidelines range, the court should explain its reason for the

departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &

Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be

“within the statutorily prescribed range and . . . reasonable.”

Id. at 547.

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vacate his sentence, and grant his motion to remand for

resentencing consistent with Booker and Hughes.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 IN PART,

 AND REMANDED