UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4097

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RICARDO PACHECO,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. James A. Beaty, Jr.,

District Judge. (CR-04-250)

Submitted: August 29, 2005 Decided: December 19, 2005

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam.

Louis C. Allen, III, Federal Public Defender, Eric D. Placke,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, Angela

Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1Just 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 Pacheco’s sentencing.

2

Although the 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

(Breyer, J., opinion of the Court). On remand, the district court

should first determine the appropriate sentencing range under the

Guidelines, making all factual findings appropriate for that

determination. Hughes, 401 F.3d at 546. The court should consider

this sentencing range along with the other factors described in 18

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PER CURIAM:

Ricardo Pacheco appeals his 76-month sentence pursuant to

a guilty plea for reentry of a deported alien felon, in violation

of 8 U.S.C. § 1326(a), (b)(2) (2000). His sole argument on appeal

is that a remand is warranted because he was sentenced under a

mandatory application of the Federal Sentencing Guidelines, in

violation of United States v. Booker, 125 S. Ct. 738 (2005). We

affirm Pacheco’s conviction, vacate the sentence, and remand for

further proceedings.1

Pacheco asserts that he should be resentenced in light of

Booker because the district court sentenced him under the mandatory

Sentencing Guidelines scheme. In United States v. White, 405 F.3d

208 (4th Cir. 2005), we held that treating the Guidelines as

mandatory constitutes error under Booker. See id. at 216-17.

Because we find error and the Government raises no objections to

resentencing, we vacate the sentence, and remand for further

proceedings.2 We also affirm Pacheco’s conviction. We dispense
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), 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.A. § 3553(c)(2) (West 2000 &

Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be

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

Id. at 547.

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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