United States v. Calloway

Opinion

ON REHEARING

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-4900

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DAVID RAY CALLOWAY, a/k/a Tony Montana,

Defendant - Appellant.

No. 03-4906

DANA SANDER,

Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, District Judge. (CR-03-142)

Submitted: February 11, 2005 Decided: March 8, 2005 Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro, North Carolina; H. Dean Steward, San Clemente, California, for Appellants. Anna Mills Wagoner, United States Attorney, Paul A. Weinman, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

- 2 - PER CURIAM:

Appellants petition this court for rehearing of their

earlier appeals. In light of United States v. Booker, 125 S. Ct.

738 (2005), and United States v. Hughes, ___ F.3d ___, 2005 WL

147059 (4th Cir. Jan. 24, 2005), we grant the petition for

rehearing. We find that the district court plainly erred in

imposing sentences that exceeded the maximum allowed based on facts

established by Appellants’ guilty pleas. We therefore vacate their

sentences and remand these cases for proceedings consistent with

Hughes. 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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