UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4307

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WALTER ANTHONY WEST,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 04-6135)

Submitted: February 15, 2006 Decided: May 4, 2006

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

James Wyda, Federal Public Defender, Beth M. Farber, Assistant

Federal Public Defender, Greenbelt, Maryland, for Appellant.

Gretchen C. F. Shappert, United States Attorney, Thomas R. Ascik,

Assistant United States Attorney, Asheville, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

Although the district court concluded that West was

responsible for “pure meth—actual meth,” the jury verdict form

specifies “more than 50 grams of a mixture or substance containing

a detectable amount of methamphetamine.” (J.A. at 795, 800). The

jury’s verdict thus supports a base offense level of 26 pursuant to

USSG § 2D1.1(c)(7), rather than a base offense level of 32 under

USSG § 2D1.1(c)(4) (for offenses involving at least 50 but no more

than 150 grams of methamphetamene (actual)).

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PER CURIAM:

This case is before the court on remand from the United

States Supreme Court. We previously affirmed Walter Anthony West’s

conviction and sentence for conspiracy to manufacture and

distribute methamphetamine, in violation of 21 U.S.C. §§ 841, 846

(2000). United States v. West, No. 03-4307 (4th Cir. June 3, 2004)

(unpublished). The Supreme Court vacated our decision and remanded

West’s case for further consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005). 

A Sixth Amendment error occurs when a district court

imposes a sentence greater than the maximum permitted based on

facts found by a jury or admitted by the defendant. Booker, 125 S.

Ct. at 756. Because West did not raise a Sixth Amendment challenge

or object to the mandatory application of the Sentencing Guidelines

in the district court, our review is for plain error. United

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

The jury’s verdict supports a factual finding that West

was responsible for at least fifty grams of a mixture containing

methamphetamine.1 This factual finding corresponds to a base
2Just 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 West’s sentencing.

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offense level of twenty-six. See U.S. Sentencing Guidelines Manual

§ 2D1.1(c)(7) (providing offense level for between 50 and 200 grams

of a mixture containing methamphetamine). When combined with

West’s criminal history category of II, this results in a

sentencing range of seventy to eighty-seven months’ imprisonment.

USSG Ch. 5, Pt. A, table. The district court imposed a sentence of

240 months, which exceeds this range. Because this amounts to

error that affects West’s substantial rights, we conclude it is

plainly erroneous.2 See Hughes, 401 F.3d at 547-48.

Accordingly, we vacate the sentence imposed by the

district court and grant West’s motion to remand for resentencing

in accordance with Booker. 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 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 imposing a non-
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Guidelines sentence 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. We affirm West’s

convictions for the reasons stated in our opinion of June 3, 2004.

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 AND REMANDED IN PART