UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4870
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEREMY SPENCER KING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (CR-03-366-FL)
Submitted: September 9, 2005 Decided: September 30, 2005
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Jane E. Pearce, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jeremy Spencer King appeals the eighty-two month sentence
imposed after a plea of guilty to one count of possession of a
firearm by a convicted felon. King does not challenge his
conviction. Finding that the district court's pronouncement of a
lower alternative sentence demonstrates that King’s substantial
rights were abridged by the sentence actually imposed, we vacate
the sentence, and remand for resentencing consistent with United
States v. Booker, 125 S. Ct. 738 (2005).
King pled guilty to one count of possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000).
At sentencing, the district court pronounced a sentence of eighty-
two months’ imprisonment in accordance with the United States
Sentencing Guidelines. The district court also announced an
alternative sentence of sixty-five months based on recent
developments calling into question the application of mandatory
sentencing guidelines schemes. See Blakely v. Washington, 542 U.S.
296 (2004).
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court ruled the Sixth Amendment is violated when a district
court, acting pursuant to the Sentencing Reform Act and the
guidelines, imposes a sentence greater than the maximum guideline
sentence authorized by the facts found by the jury alone. See id.
at 746, 750. In order to preserve the guidelines’
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constitutionality, the Court excised the statutory provision that
made them mandatory, id. at 764-65, rendering them merely advisory.
Appellant alleges the court below committed error in
sentencing him under the mandatory guidelines regime. The
government concedes error and agrees that appellant should be
resentenced. Accordingly, we vacate King’s sentence and remand 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 for that
determination. See Hughes, 401 F.3d at 546. 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.
*
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 King’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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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.
VACATED AND REMANDED
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