                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-5113



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


TIMOTHY LEE BEASLEY,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (CR-04-78)


Submitted:   January 4, 2006                 Decided:   January 30, 2006


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Megan J. Schueler, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant.   Kasey Warner, United States Attorney,
John L. File, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Defendant   Timothy   Lee   Beasley   appeals   the   sentence   the

district court imposed on him after he pled guilty to distributing

cocaine base in violation of 21 U.S.C. § 841(a)(1) (2000).            The

district court calculated Beasley’s sentence by applying the U.S.

Sentencing Guidelines, which were mandatory at the time of the

sentencing hearing.    See United States v. Hammoud, 381 F.3d 316,

353 (4th Cir. 2004). Based in part on Beasley’s prior convictions,

it sentenced him to seventy-two months.       Beasley objected at the

sentencing hearing that his sentence was in violation of Blakely v.

Washington, 124 S. Ct. 2531 (2004), and thus preserved his argument

on appeal.    See United States v. Rodriguez, No. 04-4609, slip op.

at 6 (4th Cir. Jan. 3, 2006); United States v. Mackins, 315 F.3d

399, 405 (4th Cir. 2003).

     Beasley makes two arguments. First, Beasley contends that the

district court violated his Sixth Amendment rights when it enhanced

his sentence due to his prior convictions.           His contention is

misplaced.    Although a judge cannot generally enhance a sentence

above the statutory maximum based on facts not found by a jury

beyond a reasonable doubt, United States v. Booker, 125 S. Ct. 738,

756 (2005), this rule does not apply to the fact of a prior

conviction, see id.; Almendarez-Torres v. United States, 523 U.S.

224, 247 (1998). Beasley suggests that this exception is no longer

good law, but we recently recognized its continued vitality.


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United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir. 2005).

There was, therefore, no Sixth Amendment violation.

     Second, Beasley argues that the district court erred in

treating the Guidelines as mandatory because after Booker they are

only advisory.     See 125 S. Ct. at 756-57.      We have noted that the

remedial scheme announced in Booker applies both to defendants

whose Sixth Amendment rights were violated and to defendants who

suffered no constitutional violation. See United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005).            Since the district court

applied the Guidelines in a mandatory fashion when it sentenced

Beasley, it committed legal error. See United States v. White, 405

F.3d 208, 216-17 & n.7 (4th Cir. 2005).

     Because Beasley objected below, we must inquire whether the

district court’s error was harmless. See Rodriguez, slip op. at 6.

As to this question, the government bears the burden of proof.          Id.

at 7; see also White, 405 F.3d at 223 (noting that the distinction

between harmless error and plain error is who bears the burden of

proof).   The government has not met this burden and does not oppose

remanding the case for resentencing.         See Br. of Appellee at 6-7,

9.   As    such,   we   vacate   Beasley’s    sentence   and   remand   for

resentencing.      On remand, the district court should sentence

Beasley pursuant to the procedures set forth in Hughes.           See 401

F.3d at 546-47.




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     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 in the decisional process.



                                             VACATED AND REMANDED




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