                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No.  04-4177



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


MICKEY EDWARD RATTLER,

                                            Defendant - Appellant. 



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City.  Lacy H. Thornburg,
District Judge. ( CR-03-40)


Submitted:   June 30, 2005                 Decided:   July 19, 2005


Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge. 


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion. 


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.  Gretchen C. F. Shappert, United States Attorney, Jerry
W. Miller, Assistant United States Attorney, Asheville, North
Carolina, for Appellee. 


Unpublished opinions are not binding precedent in this circuit. 
See Local Rule 36(c). 
PER CURIAM:

          Mickey Rattler appeals the 63-month sentence imposed

after his conviction for an assault inflicting serious injury

within the Eastern Band of the Cherokee Indian Reservation, in

violation of 18 U.S.C. §§ 113(a)(6) & 1153 (2000). 

          Citing Blakely v. Washington, 124 S. Ct.  2531 (2004),

Rattler contends that his Sixth Amendment right to a jury trial was

violated because he was sentenced on facts found by the court and

not by the jury.     Rattler did not object to his sentence in the

district court based on Blakely, or United States v. Booker, 125

S. Ct.  738 (2005); therefore, we review for plain error.               United

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

Rattler received a higher sentence than would have been permissible

based only on the jury’s findings, we vacate and remand Rattler’s

sentence for resentencing under an advisory guidelines system.1

See Hughes,   401   F.3d   at   547-49,   555-56   (finding   that    Hughes

satisfied all three prongs of the plain error test set forth in

United States v. Olano, 507 U.S. 725, 732 (1993), when he received

a sentence substantially longer than the sentence permitted based




     1
      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 Rattler’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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purely on the facts found by a jury, and that the court should

exercise its discretion to recognize the error). 

          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.    Sentencing courts 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 the Guideline 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 Guideline range,

the court should explain its reasons for departure as required by

18 U.S.C.A. § 3553(c)(2) (West Supp.  2005).    Id.   The sentence must

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

Id. at 546-47. 

          Rattler also argues that the restitution imposed by the

district court is erroneous in light of Blakely.       He argues that

the court made factual findings by identifying the victims of the

offense and the amount owed to each, and that after Blakely these

findings must be made by a jury.        We conclude that Rattler’s

restitution argument fails.    Because there is no statutory maximum

for restitution, the Sixth Amendment and Booker do not apply to




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restitution ordered by the sentencing court.2               United States v.

Flaschberger, 408 F.3d 941, 943 (7th Cir.  2005).              See also United

States v. Wooten, 377 F.3d 1134, 1144 & n.1 (10th Cir.) ( holding

that Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely do

not apply to restitution orders) cert.  denied, 125 S. Ct.  510

(2004). 

               Based on the foregoing, we affirm Rattler’s conviction

and the sentence as to the restitution order, vacate the remainder

of the sentence, and remand for resentencing.3              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




       2
      Booker explained that the remaining provisions of the
Sentencing Reform Act, which were left intact by the Court’s
holding, still require sentencing courts “to provide restitution to
victims.”  Booker, 125 S. Ct.  at 765. 
       3
        Rattler did not challenge his conviction on appeal. 

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