UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4987
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES EARL MCCABE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-03-62)
Submitted: May 11, 2005 Decided: May 26, 2005
Before WILLIAMS 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Affirmed in part, vacated in part, and remanded by unpublished per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, Stephen Clayton
Gordon, Assistant Federal Public Defender, Jane E. Pearce, Research
and Writing Attorney, Raleigh, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Earl McCabe, Jr., pled guilty to possession of a
firearm after conviction of a felony, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2000). McCabe was sentenced to eighty-four
months’ imprisonment to be followed by three years of supervised
release. The district court also specified an alternative sentence
of six years’ imprisonment pursuant to this court’s recommendation
in United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (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). McCabe
appealed, challenging only his sentence.
The Government now moves for remand of this case to the
district court for resentencing in light of United States v.
Booker, 125 S. Ct. 738 (2005). McCabe does not oppose a remand for
the purpose of resentencing. Because the district court applied
the Guidelines as mandatory in sentencing McCabe, and because
McCabe objected in the district court, the Government’s motion is
well taken.* Accordingly, although we affirm McCabe’s conviction,
we grant the Government’s motion to remand to allow the district
*
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 McCabe’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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court to reconsider McCabe’s sentence in light of the Booker
decision. 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 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
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 material before
the court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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