                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4338


UNITED STATES OF AMERICA,

                                            Plaintiff - Appellant,

          versus


BOBBY WILLIAMS, JR.,

                                             Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (CR-04-93)


Submitted:   February 27, 2006            Decided:   April 21, 2006


Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Christine Witcover Dean, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellant. Thomas P. McNamara, Federal Public
Defender, Stephen C. Gordon, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      The United States appeals the sentence imposed on appellee

Bobby Williams, Jr., challenging both the district court’s refusal

to consider the applicability of U.S.S.G. § 2K2.1(b)(5) when

calculating the Guidelines range and its decision to vary downward

from the Guidelines range so calculated.           For the reasons that

follow,   the    sentence   is   vacated   and   the   case   remanded   for

resentencing consistent with United States v. Booker,           125 S. Ct.

738 (2005).



                                    I.

      Williams originally was charged in two counts of a four-count

indictment with distributing heroin and possessing heroin with the

intent to distribute it, in violation of 21 U.S.C. § 841(a)(1)

(Count 3), and with possessing a firearm in furtherance of that

drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count

4).   J.A. 16.   The jury trial on those charges ended in a mistrial

after the jury deadlocked.         J.A. 19-20.     Williams subsequently

waived his right to indictment, J.A. 21, and pled guilty to a one-

count criminal information charging him only with aiding and

abetting the possession of a firearm by a felon (Williams’ original

co-defendant), in violation of 18 U.S.C. §§ 2, 922(g)(1), 924, J.A.

22, 41-42.




                                    -2-
       At sentencing on the aiding and abetting conviction, the

government, relying on the conduct alleged in Count 4 of the

original      indictment,        sought   a   four   point    enhancement    because

Williams had “used or possessed [a] firearm or ammunition in

connection with another felony offense.”                U.S.S.G. § 2K2.1(b)(5).

The district court refused to consider whether the enhancement was

warranted because it believed that Apprendi v. New Jersey, 530 U.S.

466 (2000), and United States v. Booker, 125 S. Ct. 738 (2005),

prohibited such judicial factfinding.                  See J.A. 52-57.         After

calculating the Guideline ranges without the section 2K2.1(b)(5)

enhancement, the district court then additionally varied downward

based on the section 3553(a) factors and Booker.                   J.A. 57, 64-65.

The government appeals both the failure to consider the section

2K2.1(b)(5) enhancement and the downward variance.



                                          II.

       The district court erred in concluding that Apprendi and

Booker     prohibited       it    from    considering        whether   the   section

2k2.1(b)(5) enhancement was warranted.                 We have held that it is

consistent with, and indeed required by, Booker that a sentencing

court first calculate the correct Guidelines range by making the

appropriate findings of fact.                 See United States v. Hughes, 401

F.3d   540,    546   (4th    Cir.    2005).       Post-Booker,     making    factual

findings about uncharged conduct for purposes of the Guidelines


                                          -3-
calculation of a separate crime does not violate Apprendi because

the judicial factfinding conducted is no longer necessary for the

imposition of the sentence:                  Now that the Guidelines are only

advisory, the maximum possible sentence, even without judicial

factfinding, is the actual statutory maximum.                   See id. at 545-46.

Because the district court incorrectly applied the Guidelines by

declining to consider whether a section 2K2.1(b)(5) enhancement was

warranted, the case must be remanded pursuant to 18 U.S.C. §

3742(f)(1).       United States v. Green, 436 F.3d 449, 457 (4th Cir.

2006).

       Williams does not seriously contend that the district court

did   not   err    in    refusing      to    consider   the   section      2K2.1(b)(5)

enhancement;       rather,     he   basically       argues    that   the    error   was

harmless either because the district court would not have found by

a preponderance of the evidence that an enhancement based on the

uncharged conduct was factually warranted or because it would have

imposed the same sentence even if the enhancement were warranted.

Williams’ argument is meritless. He bases his harmless error claim

entirely on two facts:          first, that a previous jury had deadlocked

on    whether     he    was   guilty    of    the   uncharged   conduct      beyond   a

reasonable doubt; and second, that the district court appears to

have rejected the Government’s argument that a downward variance

was inappropriate in light of the uncharged conduct, see J.A. 64-

65.    Obviously, neither of these facts proves that the district


                                             -4-
court would not have found by a preponderance of the evidence that

Williams was guilty of the uncharged conduct.            And given that the

reasonableness of a downward variance depends partly on the extent

of the variance from a properly calculated Guidelines range, see

United States v. Moreland, 437 F.3d 424, 433-34 (4th Cir. 2006),

the district court might well have imposed a higher sentence if it

did believe the enhancement was required.             Thus, Williams cannot

meet his burden to prove harmless error because this court lacks

“fair    assurance,    after   pondering    all   that    happened   without

stripping the erroneous action from the whole, that the judgment

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

States, 328 U.S. 750, 765 (1946).


                                 CONCLUSION

     The    sentence    is     vacated    and   the    case   remanded   for

resentencing.*

                                                       VACATED AND REMANDED




     *
      Because the sentence must be vacated, the Government’s
challenge to the reasonableness of the downward variance is moot.
Nor will addressing the issue now necessarily aid the district
court at resentencing, because the reasonableness of a downward
variance depends partly on the extent of the variance from a
properly calculated Guidelines range. See Moreland, 437 F.3d at
433-34.

                                    -5-
