UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4917

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

NEHEMIAH D. LANGSTON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

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

District Judge. (CR-04-58)

Submitted: May 13, 2005 Decided: June 27, 2005

Before WILKINSON, WILLIAMS, and KING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Frank D. Whitney, United States Attorney, Anne M.

Hayes, Christine Witcover Dean, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

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 Langston’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).

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

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PER CURIAM:

Nehemiah D. Langston pled guilty to three counts of bank

robbery, in violation of 18 U.S.C. § 2113(a) (2000). On October 6,

2004, the district court sentenced Langston, over his objection

based on Blakely v. Washington, 124 S. Ct. 2531 (2004), to 108

months’ imprisonment to be followed by three years of supervised

release. 

Langston has appealed, challenging his sentence under

Blakely, and the Supreme Court’s decision in United States v.

Booker, 125 S. Ct. 738 (2005), in which the Court applied the

reasoning in Blakely to the federal sentencing guidelines.

Langston seeks remand of his case to the district court for

resentencing. 

We conclude that Langston is entitled to be resentenced

under Booker, as the Government concedes. As Langston raises no

other issues on appeal, we affirm his conviction and vacate the

sentence imposed by the district court.1 On remand, the district

court shall reconsider Langston’s sentence in light of Booker.2 We
S. Ct. at 767. On remand, the district court should first

determine the appropriate sentencing range under the guidelines.

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), and then impose a sentence. Hughes, 401 F.3d at 546.

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

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

Id. at 547. 

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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 IN PART,

AND REMANDED