                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4591



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MICHAEL FRANCIS AWOSIKA,

                                             Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-04-7-WDQ)


Submitted:   April 5, 2006                 Decided:   April 20, 2006


Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished per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


James Wyda, Federal Public Defender, Jeffrey E. Risberg, Assistant
Federal Public Defender, Paresh S. Patel, Staff Attorney,
Greenbelt, Maryland, for Appellant.    Rod J. Rosenstein, United
States Attorney, George L. Russell, III, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Michael   F.   Awosika    pled    guilty     pursuant   to   a   plea

agreement to one count of possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1) (2000).               After the

court properly calculated Awosika’s offense level under the then-

mandatory application of the sentencing guidelines, the court

sentenced Awosika to sixty-three months’ imprisonment, the low end

of the range of imprisonment.       On appeal, Awosika challenges the

court’s mandatory application of the sentencing guidelines.                  We

affirm in part, vacate in part and remand for resentencing.

          Because Awosika raised a challenge at sentencing under

Blakely v. Washington, 542 U.S. 296 (2004), he has preserved his

challenge to the mandatory application of the sentencing guidelines

and review is for harmless error.      United States v. Rodriguez, 433

F.3d 411, 415-16 (4th Cir. 2006).      The Government bears the burden

under harmless error review of showing beyond a reasonable doubt

the error did not affect the defendant’s substantial rights.

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

States v. Stokes, 261 F.3d 496, 499 (4th Cir. 2001).               Affecting

substantial rights means that the error affected the outcome of the

proceedings.    Stokes,   261   F.3d       at   499.    The   error    may   be

disregarded if the court is certain the error did not affect the

district court’s selection of the sentence.             Williams v. United

States, 503 U.S. 193, 203 (1992).


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              Under a mandatory application of the guidelines, Awosika

was sentenced to the low end of the guidelines.     The district court

did not announce an alternate sentence nor did it announce it

considered the factors under 18 U.S.C. § 3553(a) (2000).          The

court’s silence as to what sentence it may have imposed under a

scheme wherein the guidelines are advisory must be interpreted in

Awosika’s favor.      See Rodriguez, 433 F.3d at 416.     Because the

court gave no indication of the sentence it would have imposed

under the advisory guidelines, we conclude the government failed to

establish the error in treating the guidelines as mandatory was

harmless.      Id. at 416.

              Accordingly, we affirm Awosika’s conviction, grant the

motion to remand, vacate his sentence, and remand for resentencing

in accordance with United States v. Booker, 543 U.S. 220 (2005).*

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.”        Id. 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 United

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



       *
      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 Awosika’s sentencing.

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should consider this sentencing range along with the other factors

described in § 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.

§ 3553(c)(2) (2000).          Id.   The sentence must be “within the

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

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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