UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4499

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARTIN LUIS VASQUEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. N. Carlton Tilley, Jr.,

Chief District Judge. (CR-03-357)

Submitted: June 30, 2005 Decided: July 20, 2005

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Louis C. Allen, III, Federal Public Defender, Gregory Davis,

Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:

Martin Luis Vasquez appeals his sentence of 292 months’

imprisonment that was imposed pursuant to his conviction for

conspiracy to distribute in excess of fifty grams of a mixture and

substance containing a detectable amount of methamphetamine, in

violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) (2000).

Vasquez’ counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), asserting there are no meritorious issues,

but, citing Blakely v. Washington, 124 S. Ct. 2531 (2004),

asserting that the district court erred when it: (1) determined the

quantity of drugs upon which Vasquez’ offense level was calculated;

(2) failed to grant a two-level reduction for acceptance of

responsibility; and (3) applied a two-level adjustment for

obstruction of justice. Counsel expanded upon these issues in a

supplemental brief, contending that, in light of the Supreme

Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005),

Vasquez’ Sixth Amendment rights were violated when his sentence was

imposed based on facts that were not alleged in the indictment,

found by the jury or admitted by Vasquez.

Because Vasquez did not object to his sentence in the

district court based on Blakely or Booker, this Court’s review is

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

Cir. 2005). To demonstrate plain error, Vasquez must establish

that error occurred, that it was plain, and that it affected his
1

Just 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 Vasquez’ sentencing.

2Although the United States Sentencing Guidelines are no

longer mandatory, Booker makes clear that a sentencing court must

still “consult [the] Guidelines and take them into account when

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substantial rights. Id. at 547-48. If a defendant establishes

these requirements, the Court’s “discretion is appropriately

exercised only when failure to do so would result in a miscarriage

of justice, such as when the defendant is actually innocent or the

error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. at 555 (internal

quotation marks and citation omitted).

Although we find that the district court did not err when

it granted the two-level enhancement for obstruction of justice and

denied the two-level reduction for acceptance of responsibility, we

conclude that the court’s findings regarding drug quantity violate

the mandate 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.”1 Booker, 125 S. Ct. 738, 748 (2005) (quoting

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). In accordance

with Anders, we have also reviewed the entire record in this case

and have found no other meritorious issues for appeal. 

Accordingly, we affirm Vasquez’ conviction, vacate his

sentence and remand for resentencing consistent with Booker.2

 We
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. 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. 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. § 3553(c)(2) (2000). Id. The sentence must

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

Id. at 546-47.

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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