                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4571



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellant,

           versus


RONALD CLAYTON SHAMBLIN, II,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-03-217)


Argued:   October 28, 2005              Decided:     November 23, 2005


Before LUTTIG, MOTZ, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: William Chad Noel, Jr., Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellant. Donald Lee Stennett, Charleston, West Virginia, for
Appellee.    ON BRIEF: Kasey Warner, United States Attorney,
Charleston, West Virginia, for Appellant.


Unpublished opinions are not binding precedent in this circuit.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

     This appeal was initiated by the Government and challenges the

twelve-month prison sentence imposed on defendant Ronald Shamblin

II in the Southern District of West Virginia on his conviction for

conspiring to manufacture methamphetamine. Shamblin’s sentence was

imposed on June 30, 2004, following the Supreme Court’s decision in

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and

before the Court’s decision in United States v. Booker, 125 S. Ct.

738 (2005).   The Government contends that resentencing is mandated

under Booker and its progeny.               As explained below, we vacate

Shamblin’s sentence and remand.



                                       I.

     On September 16, 2003, Shamblin was indicted for conspiring to

manufacture   an   unspecified        quantity    of    methamphetamine,    in

violation of 21 U.S.C. § 846.               On October 28, 2003, Shamblin

pleaded guilty, without any plea agreement with the prosecutors, to

the conspiracy offense charged. During his plea colloquy, Shamblin

admitted   guilt   to   the    drug   conspiracy       by   acknowledging   his

involvement in purchasing over-the-counter cold medicine he knew

others would use to manufacture methamphetamine.

     Shamblin’s initial sentencing hearing was conducted by the

district   court   on   June    21,    2004.     In    accordance   with    the

presentence report (the “PSR”), the court attributed to Shamblin


                                       2
quantities of controlled substances sufficient to establish a base

offense level of 34 under the United States Sentencing Guidelines

Manual (the “Guidelines”).          After imposing various sentencing

enhancements and a reduction for acceptance of responsibility, the

court arrived at a final offense level of 45, which was then

reduced to 43, the maximum offense level provided for under the

Guidelines.     Although offense level 43 prescribed a life sentence

for Shamblin, the governing statute for sentencing purposes, 21

U.S.C. § 841(b)(1)(C), provided that he could receive a maximum

sentence   of   twenty    years.1    The   court   accordingly   sentenced

Shamblin to twenty years in prison.

     On June 24, 2004, the Supreme Court rendered its decision in

Blakely v. Washington, holding that the enhancement of Blakely’s

state sentence beyond the statutory maximum on the basis of a

judicial   finding   of   deliberate     cruelty   contravened   his   Sixth

Amendment right to trial by jury.          See 542 U.S. 296, 124 S. Ct.

2531, 2537-38 (2004).       In so ruling, the Court re-affirmed the

principle that “‘[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed



     1
      Pursuant to 21 U.S.C. § 846, the statute under which Shamblin
was charged, the penalties spelled out in § 841(b), applicable to
any person who commits a substantive controlled substances offense,
apply also to a person who conspires to commit such an offense.
See § 846 (“Any person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.”).

                                     3
statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.’”          124 S. Ct. at 2536 (quoting Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000)).               On June 29, 2004, Shamblin

filed a motion in the district court, pursuant to Rule 35(a) of the

Federal      Rules    of   Criminal    Procedure,   seeking     to   correct    his

sentence, asserting therein that his twenty-year sentence was

unlawful under Blakely.

      On June 30, 2004, the sentencing court conducted a second

sentencing hearing and issued its Memorandum Opinion and Order

granting Shamblin’s motion and imposing a corrected sentence of

twelve months.        See United States v. Shamblin, 323 F. Supp. 2d 757

(S.D. W. Va. 2004) (the “Opinion”).2                In so ruling, the court

concluded that the relevant statutory maximum for Blakely purposes

was the top of the applicable Guidelines range rather than the

maximum penalty authorized by statute.              Id. at 766.        It further

determined      that,      although    Blakely   precluded    any    increase    in

Shamblin’s sentence based on facts found solely by the court, the

Guidelines themselves remained the “law which binds [the] court in

sentencing matters.”          Id. at 767.     The sentencing court therefore

operated under the assumption that the Guidelines were mandatory

but   that    it     was   precluded   from   finding   facts   that    increased


      2
      Pursuant to Rule 35(a), a court must correct a clearly
erroneous sentence within seven days (excluding, under Rule 45(a),
weekends and holidays).   Not only did the court act within the
period prescribed (the Opinion was issued on the seventh day), its
Opinion contained a thoughtful explanation of its ruling.

                                          4
Shamblin’s sentence beyond the sentencing range established by the

admitted facts.     Based solely on the facts admitted by Shamblin in

the plea colloquy — that he had purchased cold medicine in

furtherance of the § 846 conspiracy offense — the Guidelines

called for a maximum penalty of sixteen months.                     After awarding

Shamblin an appropriate reduction for acceptance of responsibility,

the Guidelines provided that he could receive a maximum sentence of

twelve months. Id. at 766. Although the court believed Shamblin’s

twelve-month    sentence    to   be    the        result     of    “an   artificial

application    of   the   Guidelines”       and    to   be    “almost    certainly

inadequate” in Shamblin’s case, it concluded that the twelve-month

sentence was compelled by Blakely.           Id. at 767, 768.

     The Government timely noted its appeal of Shamblin’s sentence,

and we possess jurisdiction pursuant to 28 U.S.C. § 1291.



                                      II.

     We review de novo questions of law.             United States v. Bursey,

416 F.3d 301, 306 (4th Cir. 2005).          A legal error is harmless only

where we can conclude “with fair assurance . . . that the judgment

was not substantially swayed by the error.”                       United States v.

Curbelo, 343 F.3d 273, 286 (4th Cir. 2003) (internal quotation

marks omitted).




                                      5
                                   III.

     By its appeal, the Government contends that the district court

erred as a matter of law in treating the Guidelines as mandatory

and in failing to make the factual findings required under the

Guidelines.   As explained below, we agree.

     While this appeal was pending, the Supreme Court issued its

decision in United States v. Booker, 125 S. Ct. 738 (2005).            In

Booker, the Court concluded, as did the sentencing court here, that

the relevant maximum for Sixth Amendment purposes was the top of

the applicable sentencing range, not the maximum penalty authorized

by the relevant statute.     Id. at 749-50.   Thus, under the mandatory

Guidelines regime, a Sixth Amendment violation occurs when judicial

factfinding   results   in   a   sentence   greater   than   the   maximum

justified only by the facts admitted by the defendant.        Id. at 750.

The Court’s remedy, however, differed from that utilized by the

sentencing court here.        Instead of retaining the Guidelines’

mandatory character and requiring jury determinations (or defendant

admissions) of each fact supporting an enhancement, the Court

determined that the Guidelines are advisory only.        Id. at 757.    In

so ruling, the Court stressed that, while the Guidelines no longer

carry the force and effect of law, a sentencing court is obliged to

consider and be advised by the applicable Guidelines sentencing

range and other statutory sentencing goals.           See id. at 764-65

(citing 18 U.S.C. § 3553(a)).


                                    6
     In United States v. Hughes, 401 F.3d 540 (4th Cir. 2005), we

elaborated on the post-Booker obligations of a sentencing court.

We explained that a sentencing court must “first calculate (after

making the appropriate findings of fact) the range prescribed by

the guidelines,” and then “consider that range as well as the other

relevant factors set forth in the guidelines and those factors set

forth in § 3553(a).”       Id. at 546.        Thus, Booker did not change the

method by which a sentencing court calculates the applicable

sentencing range under the Guidelines; it merely diminished the

force and impact of the Guidelines.

     With these principles in mind, it is evident that the district

court committed two legal errors in sentencing Shamblin:                   (1) it

treated the Guidelines as mandatory; and (2) it calculated the

applicable Guidelines sentencing range based solely on the facts

that Shamblin had admitted rather than on its own findings found by

a preponderance of the evidence.             Moreover, these errors were not

harmless.     Although     the   court       remarked   that   the   twenty-year

sentence prescribed by the Guidelines, which it initially imposed

on Shamblin, was too severe, it also characterized the twelve-month

sentence    imposed   on   Shamblin      at    his   resentencing    as   “almost

certainly inadequate.”      Shamblin, 323 F. Supp. 2d at 768.             In these

circumstances, we are unable to say “with fair assurance . . . that

the judgment was not substantially swayed by the error,” United

States v. Curbelo, 343 F.3d 273, 286 (4th Cir. 2003) (internal


                                         7
quotation marks omitted), and we are obliged to vacate and remand

for resentencing.3



                               IV.

     Pursuant to the foregoing, we vacate Shamblin’s sentence and

remand for resentencing.



                                             VACATED AND REMANDED




     3
      Finally, Shamblin contends that any sentence imposed on him
beyond the twelve months authorized by his plea admissions would
constitute a due process violation in the form of an impermissible
ex post facto increase in his punishment. See Appellee’s Supp. Br.
2-4. Because the district court has not addressed Shamblin’s due
process contention, we decline to reach it.

                                8
