UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4990
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALLEN EUGENE LAYTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (CR-04-65)
Submitted: April 8, 2005 Decided: May 20, 2005
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Frank Willard Dunham, Jr., Federal Public Defender, Alexandria,
Virginia, Robert James Wagner, Federal Public Defender, Richmond,
Virginia, for Appellant. Paul Joseph McNulty, United States
Attorney, Alexandria, Virginia, Timothy Richard Murphy, Special
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Allen Eugene Layton pled guilty to possession with intent
to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1)
(2000), possession of a firearm during and in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (2000),
and possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1) (2000). On October 26, 2004, the district court
sentenced Layton to concurrent eighty-four month prison terms on
counts one and three and a consecutive sixty-month prison term on
count two, followed by five years of supervised release. However,
in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), and
pursuant to this court’s recommendation in United States v.
Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued by 381
F.3d 316, 353-54 (4th Cir. 2004) (en banc), cert. granted and
judgment vacated, 125 S. Ct. 1051 (2005), the district court
announced an alternative prison sentence for counts one and three
of seventy-two months. After Layton filed his notice of appeal,
the Supreme Court decided United States v. Booker, 125 S. Ct. 738
(2005). Layton has now filed an unopposed motion to remand his
case to the district court for resentencing in light of Booker.
We grant the motion for remand to allow the district
court to reconsider Layton’s sentence in light of the Booker
decision. Layton indicates the sole issue he wishes to pursue on
appeal is the propriety of his sentence imposed under the mandatory
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sentencing guidelines scheme in effect at the time he was
sentenced. Therefore, we affirm his convictions, vacate the
sentence imposed by the district court, and remand for
reconsideration of the sentence. 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
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