UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4981
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY DOWELL, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-04-65)
Submitted: July 13, 2005 Decided: August 4, 2005
Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
G. Ernest Skaggs, SKAGGS & SKAGGS, Fayetteville, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Miller A. Bushong
III, Assistant United States Attorney, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Dowell, Sr. was convicted of distribution of
cocaine base in violation of 21 U.S.C. § 841(a)(1) (2000). Dowell
appeals, contending that the district court improperly sentenced
him when it attributed a drug quantity to him greater than found by
the jury. Dowell does not challenge his conviction. He preserved
the sentencing issue for appeal by raising it in the district
court. We affirm Dowell’s conviction but vacate and remand for
resentencing.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court concluded that the mandatory manner in which the
federal sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the judge by a preponderance
of the evidence violated the Sixth Amendment. Booker, 125 S. Ct.
at 746, 750. In light of Booker, we vacate Dowell’s sentence and
remand the case for resentencing.* 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
*
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 Dowell’s sentencing.
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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.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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