                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4457



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DARRELL ANTONIO BURRELL, a/k/a Silly Rabbit,

                                               Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (CR-98-210-WMN)


Submitted:   August 31, 2005                 Decided:   April 25, 2006


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant. Thomas M. DiBiagio, United States
Attorney, Jamie M. Bennett, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Darrell Antonio Burrell appeals from the judgment of the

district     court   resentencing   him     to    life   imprisonment   on    a

conviction for conspiracy to distribute and possess with the intent

to distribute cocaine, in violation of 21 U.S.C. §§ 841, 846

(2000).    Although we affirm Burrell’s conviction, we vacate his

sentence and grant his motion to remand for resentencing in light

of United States v. Booker, 543 U.S. 220 (2005).

           Burrell first asserts that his conspiracy conviction

should be set aside on the basis of the district court’s removal of

one of the two attorneys appointed to defend him on capital murder

charges.     He claims this action infected his entire trial with

structural    error.     We   considered    and    rejected   this   claim   in

Burrell’s prior appeal.       See United States v. Ray, No. 00-4409(L),

(4th Cir. Mar. 19, 2003) (unpublished). Accordingly, we decline to

reconsider this issue, and we affirm Burrell’s conviction.                   See

United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).

           Burrell also claims that the district court’s imposition

of sentence violated his Sixth Amendment right to trial by a jury.

Burrell preserved this issue in the district court by objecting

pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004).                   See

United States v. Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006).

Because Burrell preserved the issue, we review the district court’s

imposition of sentence de novo, and the Government bears the burden


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of demonstrating that any error in the sentence is harmless.             See

id.; United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).

           In Booker, the Supreme Court held 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.

See Booker, 543 U.S. at 233-34 (Stevens, J., opinion of the Court).

The Court remedied the constitutional violation by severing two

statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005)

(requiring sentencing courts to impose a sentence within the

applicable guideline range), and 18 U.S.C.A. § 3742(e) (West 2000

& Supp. 2005) (setting forth appellate standards of review for

guideline issues), thereby making the guidelines advisory.            United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (citing Booker,

543 U.S. at 258-65 (Breyer, J., opinion of the Court)).

           After   Booker,    courts   must   calculate     the   appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and impose a sentence.            If the district

court imposes a sentence outside the guideline range, it must state

its reasons for doing so.      Hughes, 401 F.3d at 546.       This remedial

scheme   applies   to   any   sentence    imposed   under    the   mandatory

guidelines, regardless of whether the sentence violates the Sixth




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Amendment.   Id. at 547 (citing Booker, 543 U.S. at 267-68   (Breyer,

J., opinion of the Court)).

          On the prior remand from this court, the district court

applied the murder cross-reference pursuant to U.S. Sentencing

Guidelines Manual § 2D1.1 (2000), and imposed a life sentence. The

court also noted it would have alternatively applied the career

offender enhancement pursuant to USSG § 4B1.1:

     I will say, if it has any import, that if I was wrong
     with respect to the law, that 2A1.1 [the murder cross
     reference] is not appropriate and Mr. Burrell is more
     appropriately sentenced, as Mr. Montemarano has argued,
     under the drug charge, that is, his career offender
     status, he would come out at a 37, and because of the
     murders that occurred and the clear evidence of Mr.
     Burrell’s proclivities toward violence and his danger to
     the community, likelihood of recidivism, et cetera, I
     would sentence him to life, but that’s not where we are.

(J.A. at 121).    The facts that were used to enhance Burrell’s

sentence pursuant to the murder cross-reference were neither found

by the jury nor admitted by Burrell.      Accordingly, in light of

Booker, Burrell’s sentence was erroneous.*

          We likewise conclude that the error was not harmless.

Although the district court stated an alternative basis for a life

sentence, the court provided the alternative in the event that we

disagreed with the application of the murder cross-reference.     The

court did not make clear that it would have given the same sentence


     *
      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 Burrell’s sentencing.

                               - 4 -
if the guidelines were advisory rather than mandatory, and we

decline to speculate as to whether the court would have imposed the

same sentence under the now-advisory guidelines. Because we cannot

conclude from the record before us that the district court would

necessarily have applied the same sentence if it had considered the

guidelines to be advisory, we must vacate Burrell’s sentence and

remand the case for resentencing.

            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.”       543 U.S. at 264.            On remand, the district court

should first determine the appropriate sentencing range under the

guidelines,      making    all    factual      findings      appropriate      for   that

determination.      See Hughes, 401 F.3d at 546 (applying Booker on

plain error review).            The court should consider this sentencing

range    along   with     the    other    factors      described   in    18     U.S.C.A.

§ 3553(a), 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.A. § 3553(c)(2) (West

2000).     Id.      The     sentence      must    be    “within    the    statutorily

prescribed range and . . . reasonable.”                  Id. at 546-47.




                                          - 5 -
          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 AND REMANDED IN PART




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