UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-5086

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TOMMY RAY MULLINS, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Beckley. David A. Faber, Chief

District Judge. (CR-04-128)

Submitted: April 15, 2005 Decided: May 27, 2005

Before WILKINSON, LUTTIG, and GREGORY, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,

Appellate Counsel, David R. Bungard, Assistant Federal Public

Defender, Charleston, West Virginia, for Appellant. Kasey Warner,

United States Attorney, W. Chad Noel, Assistant United States

Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*Mullins objected to the recommendation in the presentence

report that he was responsible for ninety grams of methamphetamine

and that his conduct created a substantial risk of harm to the life

of a minor.

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PER CURIAM:

Tommy Ray Mullins, Jr., pled guilty to conspiracy to

manufacture methamphetamine and was sentenced to a term of 120

months imprisonment. At the sentencing hearing, Mullins objected

to the district court’s consideration of certain relevant conduct*

and his criminal history in determining his sentence, arguing that

Blakely v. Washington, 124 S. Ct. 2531 (2004), applied to the

federal sentencing guidelines. The district court overruled his

objections, relying on United States v. Hammoud, 381 F.3d 316 (4th

Cir. 2004), vacated, 125 S. Ct. 1051 (2005). Mullins appeals his

sentence, alleging that, in light of the Supreme Court’s subsequent

decision in Booker v. United States, 125 S. Ct. 738 (2005), his

sentence violates the Sixth Amendment and that the district court

erred in applying the guidelines as mandatory. He argues that his

sentence should be vacated and his case remanded for resentencing

in accord with 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
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Court). The Court remedied the constitutional violation by

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

Supp. 2004) (requiring sentencing courts to impose a sentence

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

(West 2000 & Supp. 2004) (setting forth appellate standards of

review for guideline issues), thereby making the guidelines

advisory. Booker, 125 S. Ct. at 756-57 (Breyer, J., opinion of the

Court). The government states in its appellate brief that it does

not oppose Mullins’ request for resentencing.

We therefore vacate the sentence imposed by the district

court and remand for resentencing consistent with Booker. 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.

VACATED AND REMANDED