United States of America v. Hughes, 401 F.3d 540, 545 n.4 4th Cir. 2005 , “[w]e of course offer no criticism of…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4865
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS M. HODGES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (CR-03-364)
Submitted: May 25, 2005 Decided: July 11, 2005
Before LUTTIG, KING, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
John K. Wiles, CHESIRE, PARKER, SCHNEIDER, BRYAN & VITALE, 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Unpublished opinions are not binding precedent in this circuit.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).

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1Hodges preserved the issues for appeal by raising them in the
district court.
2Just 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 Hodges’ 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 the appeal”).
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PER CURIAM:
Thomas M. Hodges pled guilty to nine counts of mail
fraud, in violation of 18 U.S.C. § 1341 (2000), ten counts of money
laundering, in violation of 18 U.S.C. § 1956(a)(1) (2000), and one
count of embezzlement of an insurance premium, in violation of 18
U.S.C. § 1033(b)(1) (2000). Hodges was sentenced to 58 months’
imprisonment on each count to run concurrently, followed by a term
of two years of supervised release on each count to run
concurrently.
On appeal, Hodges does not challenge his conviction. He
does, however, argue that the district court erred in treating the
United States Sentencing Guidelines as mandatory and that an
enhancement to his sentence for abuse of a position of trust under
the federal Sentencing Guidelines was based on judicial fact-
finding in violation of United States v. Booker, 125 S. Ct. 738
(2005).1 We agree. While we affirm Hodges’ conviction, we vacate
his sentence and remand the case for resentencing in accordance
with Booker. 2

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3Hodges and the Government agree that the district court is
not bound by the alternative sentence it previously announced in
accordance with our opinion in United States v. Hammoud, 381 F.3d
316, 353-54 (4th Cir. 2004) (en banc), cert. granted and judgment
vacated, 125 S. Ct. 1051 (2005), and vacated and remanded, ___
F. 3d ___, 2005 WL 975119 (4th Cir. Apr. 27, 2005) (en banc).
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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). Id. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47. 3

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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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