UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-4274



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


PRESTON T. JENKINS,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-03-485)


Submitted:    July 25, 2005                 Decided:   August 25, 2005


Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Leslie S.    McAdoo-Brobson, LESLIE MCADOO, CHARTERED, Washington,
D.C., for    Appellant.   Paul J. McNulty, United States Attorney,
Raymond E.   Patricco, Jr., Stephen Campbell, Assistant United States
Attorneys,   Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Preston T. Jenkins appeals his convictions and sentence

for conspiracy to commit prostitution, in violation of 18 U.S.C. §

371 (2000), two counts of interstate transportation in furtherance

of prostitution, in violation of 18 U.S.C. §§ 2421-22 (2000), and

three counts of inducing travel for prostitution, in violation of

18 U.S.C. § 2422(a)(2000).     While we affirm his convictions, we

vacate his sentence and remand for resentencing.

          Jenkins   first   contends    the   district    court   erred   by

denying his motion to suppress the evidence seized pursuant to a

state search warrant.       Specifically, Jenkins asserts that the

transfer of the seized property to federal authorities constituted

a second and unlawful seizure in violation of his Fourth Amendment

rights.   This court reviews the district court’s factual findings

underlying a motion to suppress for clear error and the district

court’s legal determinations de novo.         Ornelas v. United States,

, 699 (1996); United States v. Perkins, 

,

320 (4th Cir. 2004), cert. denied, 

(2005).           When a

suppression motion has been denied, this court reviews the evidence

in the light most favorable to the government.           United States v.

Seidman, 

, 547 (4th Cir. 1998).       We     find the district

court properly determined the property in question never lost its

status as evidence, and because Jenkins failed to formally move for

the return of his property as required by state law, he had no


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right to the return of his property.         See Va. Code Ann. §§ 19.2-58,

19.2-60.     Accordingly, we find no error in the court’s denial of

Jenkins’ motion to suppress, and affirm Jenkins’ convictions.

            Jenkins also contends that his sentence was imposed in

violation of the Supreme Court’s decision in Blakely v. Washington,

(2004).       Because Jenkins did not raise this claim in

the district court, his sentence is reviewed for plain error.             See

United States v. Hughes, 

, 547 (4th Cir. 2005).                To

demonstrate plain error, a defendant must establish that error

occurred, that it was plain, and that it affected his substantial

rights.     United States v. Olano, 

, 731-32 (1993);

.           If a defendant establishes these

requirements, the court’s “discretion is appropriately exercised

only when failure to do so would result in a miscarriage of

justice, such as when the defendant is actually innocent or the

error     seriously   affects   the      fairness,   integrity    or   public

reputation of judicial proceedings.” 

quotation

marks and citation omitted).

     After Jenkins filed this appeal, the Supreme Court issued

United States v. Booker, 

(2005), holding that the

mandatory    manner   in   which   the    federal    sentencing   guidelines

required courts to impose sentencing enhancements based on facts

found by the court by a preponderance of the evidence violated the

Sixth Amendment.      The Court remedied the constitutional violation


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by severing two statutory provisions, 18 U.S.C. § 3553(b)(1) (2000)

(requiring courts to impose a sentence within the applicable

guideline range), and 18 U.S.C. § 3742(e) (2000) (setting forth

appellate standards of review for guidelines issues), thereby

making the guidelines advisory.   See United States v. Hughes, 

, 546 (4th Cir. 2005)(citing 

).

After Booker, courts must calculate the appropriate guidelines

range, consider the range in conjunction with other relevant

factors under the guidelines and 18 U.S.C. § 3553(a) (2000), and

impose a sentence. If a court imposes a sentence outside the

guidelines range, the district court must state its reasons for

doing so.   

applies to any sentence

imposed under the mandatory guidelines, regardless of whether the

sentence violates the Sixth Amendment.   

).

     Here, according to the Presentence Report (“PSR”), Jenkins’

base offense level was 14, pursuant to U.S. Sentencing Guidelines

Manual § 2G1.1(a)(2).   Jenkins then received a four-level increase

for his role in the offense, pursuant to USSG § 3B1.1(a).   Jenkins

also received a two-level increase for obstruction of justice for

threatening a prosecution witness, pursuant to USSG § 3C1.1, giving

him an adjusted offense level of 20.     Finally, Jenkins’ offense

level was increased to 25, to account for grouping of multiple

victims under USSG § 3D1.4.   In light of Booker, we conclude that


                               - 4 -
Jenkins’ sentence was improperly enhanced based upon facts that

were not proven to the jury and was imposed under the mandatory

guidelines scheme, constituting plain error.*    See Olano, 

at 731-32; 

.         We therefore affirm

Jenkins’ convictions, but remand for resentencing consistent with

this opinion. 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




     *
      Just as we noted in United States v. Hughes, 

,
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 Jenkins’ sentencing.

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