UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4495

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MELVIN LOCKLEAR,

Defendant - Appellant.

No. 03-4505

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MELVIN LOCKLEAR,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 04-6095)

Submitted: July 12, 2006 Decided: September 20, 2006

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.
- 2 -

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Unpublished opinions are not binding precedent in this circuit.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

The Government contends that Locklear admitted the higher

drug quantity by not objecting to the presentence report. However,

in United States v. Milam, 443 F.3d 382 (4th Cir. 2006), this court

determined that a failure to object to the presentence report does

not constitute an admission of facts set forth in the report for

the purposes of Booker. “To presume, infer, or deem a fact

admitted because the defendant has remained silent is contrary to

the Sixth Amendment.” Id.

- 3 -

PER CURIAM:

Melvin Locklear appeals his 235-month prison sentence

resulting from his conviction for distribution of cocaine base, in

violation of 21 U.S.C. § 841 (2000), and conspiracy to distribute

cocaine base, in violation of 21 U.S.C. § 846 (2000). Although we

previously affirmed Locklear’s convictions and sentence, the

Supreme Court granted Locklear’s petition for certiorari, vacated

this court’s judgment, and remanded for further consideration in

light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005). We reaffirm Locklear’s conviction, which he does not

challenge, but vacate his sentence and remand for resentencing in

light of Booker.

Locklear contends that the district court improperly

sentenced him when it imposed a sentence greater than the maximum

authorized by the facts to which he admitted in his guilty plea.1

Because he failed to raise this claim below, we review it for plain

error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

Locklear pled guilty to distribution of at least five grams of

cocaine base and conspiracy to distribute at least fifty grams of
- 4 -

cocaine base. At sentencing, the district court held Locklear

accountable for 1.76 kilograms of cocaine base for a base offense

level of thirty-eight under U.S. Sentencing Guidelines Manual §

2D1.1(c)(1) (2004). The district court also added two offense

levels for possession of a dangerous weapon pursuant to USSG

§ 2D1.1(b)(1), and subtracted three offense levels for acceptance

of responsibility under USSG § 3E1.1(a). The drug quantity stated

in the indictment equates only to a base offense level of thirtytwo and not the base offense level of thirty-eight upon which he

was sentenced. Also, Locklear’s guilty plea did not include an

admission to the possession of a firearm; thus the district court’s

two offense level increase for possession of a dangerous weapon

also violated the Sixth Amendment. Because Locklear’s criminal

history level was II, the district court’s drug quantity and role

in the offense factual findings increased Locklear’s sentencing

range from 135-168 months to 235-293 months. Locklear’s 235-month

sentence thus exceeded the sentence that could have been imposed

based only on the facts admitted to in the guilty plea. The

district court erred in basing the sentence on judge-found facts

under a mandatory guidelines regime, and the error was plain.

Hughes, 401 F.3d at 547-48. Because Locklear’s sentence was longer

than what could have been imposed based on the guilty plea alone,

the error affected his substantial rights, id. at 548, and we will
2

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 Locklear’s sentencing.

- 5 -

notice the error, id. at 555. Therefore, Locklear must be

resentenced.2

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 the 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.

Accordingly, we vacate Locklear’s sentence and remand for

resentencing in light of 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