UNITED STATES of America, Plaintiff-Appellee, v. James Earl MCCABE, Jr., Defendant-Appellant, 132 F. App'x 463

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. Hammond, 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, — U.S. -, 125 S.Ct. 1051, 160 L.Ed.2d 997 (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, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (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 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 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, 117 S.Ct. 1544, 137 L.Ed.2d 718 (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”).