UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4854

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSEPH LEVI PLUMBER,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. William L. Osteen, District

Judge. (CR-04-24)

Submitted: May 27, 2005 Decided: July 6, 2005

Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, Paul A.

Weinman, 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Unpublished opinions are not binding precedent in this circuit.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:

Joseph Levi Plumber pled guilty to transporting a stolen

vehicle in interstate commerce in violation of 18 U.S.C. §§ 2, 2312

(2000), and using an unauthorized access device to obtain over

$1000 worth of things in violation of 18 U.S.C. §§ 2, 1029(a)(2),

(c)(1)(A)(i) (2000). On August 24, 2004, Plumber was sentenced to

serve concurrent terms of thirty-one months’ imprisonment, to pay

$5919 restitution, and to serve concurrent terms of three years’

supervised release. Plumber objected to the district court’s

consideration of certain relevant conduct in determining his

sentence, arguing that Blakely v. Washington, 124 S. Ct. 2531

(2004), applied to the federal sentencing guidelines. The district

court overruled the objection. Plumber appealed his sentence,

alleging that in light of the Supreme Court’s subsequent decision

in United States v. Booker, 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. Booker, 125 S. Ct. at 746, 750 (Stevens, J., opinion of
*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 Plumber’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”).

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the 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

agrees the district court erred and requests resentencing.

We therefore affirm the conviction, vacate the sentence

imposed by the district court, and remand for resentencing

consistent 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.” Booker, 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 United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005) (applying Booker on plain error review). The court

should consider this sentencing range along with the other factors
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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. 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 IN PART, AND REMANDED