                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4758



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ELOY LUEVANO-AVALOS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-87)


Submitted:   July 27, 2005                 Decided:   August 22, 2005


Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


William L. Osteen, Jr., ADAMS & OSTEEN, Greensboro, North Carolina,
for Appellant.    Angela Hewlett Miller, United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Eloy Luevano-Avalos pleaded guilty to illegal reentry of

an aggravated felon in violation of 18 U.S.C. §§ 1326(a), (b)(2)

(2000).    He was sentenced in August 2004 to twenty-eight months in

prison followed by two years of supervised release.               We affirm

Luevano-Avalos’ conviction but vacate his sentence and remand for

resentencing.

            On   appeal,   his   counsel    filed   a   brief   pursuant   to

Anders v. California, 386 U.S. 738 (1967), stating there were no

meritorious issues for appeal but addressing the sentence in light

of Blakely v. Washington, 542 U.S. 296 (2004).          His initial Anders

brief argued that his sentence was imposed in violation of Blakely

because,     under   Blakely,     the      sentencing    guidelines    were

presumptively unconstitutional and because of the calculation of

his criminal history points.      Although Luevano-Avalos was informed

of his right to file a pro se supplemental brief, he did not do so.

            United States v. Booker, 125 S. Ct. 738 (2005), issued

while this appeal was pending, and this court invited the parties

to file supplemental briefs in light of Booker.            Luevano-Avalos’

supplemental brief argues his sentence violated the Sixth Amendment

under Booker, and this error was preserved by his objection at

sentencing. The Government waived its right to file a supplemental

brief and conceded that Luevano-Avalos’ sentence should be vacated

and remanded for resentencing because the sentencing range was

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affected by factors other than Luevano-Avalos’ prior convictions.

The Government cited United States v. Hughes, 401 F.3d 540 (4th

Cir. 2005).1

            We find no Sixth Amendment error in Luevano-Avalos’

sentence.      He   received   one   enhancement   for   being   previously

deported after a conviction for a felony that is a drug trafficking

offense for which the sentence imposed was thirteen months or less.

See USSG § 2L1.2(b)(1)(B).      However, even after Booker, a district

court does not commit error by relying on the existence of a prior

conviction to support a sentencing enhancement. See Booker, 125 S.

Ct. at 756 (“Any fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable

doubt.”).

            Similarly, Luevano-Avalos contends that under the Supreme

Court’s decision in Blakely (and now Booker), the district court

erroneously calculated his criminal history score, as the court had

to make factual findings beyond the mere fact of conviction.

Luevano-Avalos was assigned one point for his 2001 possession of



     1
      We note that the “plain error” standard of review employed in
Hughes is not controlling in this case because Luevano-Avalos
preserved error under Booker for appellate review by lodging a
general objection under Blakely at sentencing, unlike the appellant
in Hughes.

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marijuana for sale conviction and two points because he committed

the instant offense while on probation for his prior conviction.

The district court’s assessment of criminal history points was

based on the summary of the conviction in the presentence report,

to   which    Luevano-Avalos   lodged   no   specific   objections.    In

addition,     the   calculation   involved   determining   only   whether

Luevano-Avalos was convicted of the prior offense and his status

relative to the prior conviction when he committed the instant

offense.      We therefore find the district court’s assessment of

criminal history points did not violate the Sixth Amendment.

             Finally, our review of the record under Anders requires

us to assess whether the district court erred in failing to treat

the Guidelines as advisory. As Luevano-Avalos properly raised this

issue in the district court by objecting to his sentence based on

Blakely, we review for harmless error.         The Government bears the

burden in harmless error review of showing beyond a reasonable

doubt that the error did not affect the defendant’s substantial

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

2003).       The Government did not meet this burden because the

district court gave no indication what the sentence would have been

had the district court not been bound by the Guidelines.2         We would

have to speculate that the district court’s error in thinking


      2
      We also note the Government expressly waived its right to
file a supplemental brief opposing remand.

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itself bound by the Guidelines did not affect the sentence.              In

light of Booker, we vacate Luevano-Avalos’ sentence and remand for

resentencing.3     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.”     125 S. Ct. at 767.         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. § 3553(a)

(2000), 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.

           As required by Anders, we have reviewed the entire record

and have found a meritorious issue for appeal. We therefore affirm

Luevano-Avalos’ conviction but vacate his sentence and remand for

resentencing. We dispense with oral argument because the facts and




      3
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Luevano-Avalos’
sentencing.

                                    - 5 -
legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                  AFFIRMED IN PART,
                                      VACATED IN PART, AND REMANDED




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