In U.S. v. Hughes, Chief Judge Wilkins wrote an opinion for a panel including Judges Traxler and Gregory, applying Booker, reversing the judge-made sentence enhancement in the case, and remanding for resentencing in accordance with Justice Breyer's opinion.
The Court said:
"Consistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in § 3553(a) before imposing the sentence. . . . If the court imposes a sentence outside the guideline range, it should explain its reasons for doing so. In light of the excision of § 3742(e) by the Supreme Court, we will affirm the sentence imposed as long as it is within the statutorily prescribed range, see Apprendi, 530 U.S. at 490, and is reasonable, see Booker, Opinion of Justice Breyer for the Court at 18."