UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4625
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LUTHER JOE CYRUS, a/k/a Joe Cyrus,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-03-106)
Submitted: April 25, 2005 Decided: May 24, 2005
Before WILKINSON, WILLIAMS, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
John M. Ervin, III, Darlington, South Carolina, for Appellant.
Jonathan S. Gasser, Acting United States Attorney, Rose Mary
Parham, Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Luther Joe Cyrus pled not guilty to a charge of felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(e) (2000), and a charge of conspiracy to distribute narcotics.
A jury convicted Cyrus of felon in possession of a firearm, but
acquitted him of the narcotics charge. Cyrus appeals, contending
that the reasoning in Blakely v. Washington, 124 S. Ct. 2531
(2004), applies to the Sentencing Guidelines and that the district
court thus erred in enhancing his sentence using evidence of
possession of drugs that the jury found insufficient to convict
Cyrus beyond a reasonable doubt on the narcotics charge.1 Cyrus
preserved this issue for appeal by raising it in the district
court.
After Cyrus filed his appeal, the Supreme Court in United
States v. Booker, 125 S. Ct. 738 (2005), held that the reasoning in
Blakely applies to the federal Sentencing Guidelines and that the
Guidelines are advisory rather than mandatory. In light of Booker,
we vacate Cyrus’s sentence and remand the case for resentencing.2
1
Cyrus does not challenge his conviction. The United States
agrees that Cyrus must be resentenced.
2
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 Cyrus’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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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 materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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