                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5085



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ROMONA TAYLOR WILLIAMS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-03-284)


Submitted:   May 3, 2006                      Decided:   July 5, 2006


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


Remanded by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Hunter P. Smith, Jr.,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Romona Taylor Williams (“Williams”) pled guilty to one

count of mail fraud, in violation of 18 U.S.C. § 1341 (2000), and

was sentenced to six months of imprisonment, followed by six months

of home confinement.      Before this court is Williams’ appeal and a

joint motion to remand for resentencing.

           Williams argues the sentence imposed violates her Sixth

Amendment rights under United States v. Booker, 543 U.S. 220

(2005), and challenges the district court’s application of the

sentencing guidelines as mandatory.            Because she objected at

sentencing based on Blakely v. Washington, 542 U.S. 296 (2004),

Williams has preserved the constitutional issue.        United States v.

Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006).        For the reasons set

forth below, we grant the motion to remand for resentencing.

           As calculated by the probation officer and adopted by the

district court, Williams’ base offense level was six.              United

States Sentencing Guidelines Manual § 2B1.1(a)(2) (2003) (“USSG”).

This was increased six levels, pursuant to USSG § 2B1.1(b)(1)(D)

(2003),   because   the   total   loss   attributable   to   Williams   was

$63,788.65. Williams’ offense level was then raised two levels for

abuse of trust.     USSG § 3B1.3 (2003).     After a two-level reduction

for acceptance of responsibility, Williams’ total offense level was

twelve.   USSG § 3E1.1(a) (2003).          This, coupled with a criminal




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history category I, yielded a sentencing range of ten to sixteen

months’ imprisonment. USSG Ch. 5, Pt. A (2003) (sentencing table).

          We first find the district court did not commit Sixth

Amendment error in sentencing Williams.     A Sixth Amendment error

occurs when the district court imposes a sentence greater than the

maximum permitted based on facts found by a jury or admitted by the

defendant.   Booker, 543 U.S. at 244.      To ascertain whether the

defendant’s sentence violated her Sixth Amendment rights post-

Booker, this court employs the defendant’s “guideline range based

on the facts he admitted before adjusting that range for acceptance

of responsibility.”   United States v. Evans, 416 F.3d 298, 300 n.4

(4th Cir. 2005).   Williams conceded a total loss of $12,634.   Thus,

according to Williams’ own admission, her base offense level is

ten. USSG § 2B1.1(b)(1)(C) (2003) (requiring a four-level increase

for total loss greater than $10,000).        Assuming a category I

criminal history, Williams’ sentencing range would be six to twelve

months’ imprisonment.     See USSG Ch. 5, Pt. A.      As Williams’

sentence does not exceed the maximum sentence authorized by the

facts she admitted, there is no Sixth Amendment violation.

          We next address the district court’s application of the

guidelines as mandatory; because Williams preserved the issue by

objecting below, we review for harmless error.      See Booker, 543

U.S. at 268; Rodriguez, 433 F.3d at 416.    “[T]he burden is on the

government to prove that the district court would not have imposed


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a lesser sentence if it had known that the Guidelines were not

mandatory.” United States v. Williams, 445 F.3d 724, 741 (4th Cir.

2006).

            We conclude that the Government has not carried its

burden.   The sentencing transcript reveals that the district court

explicitly relied on the minimum term authorized by the calculated

guidelines range as the controlling factor in determining Williams’

sentence.   Though the district court did not sentence Williams to

the lowest sentence available under the guidelines, its comments

indicate that the minimum term was the baseline consideration for

its ultimate sentencing determination.    Even though the twelve-

month sentence falls within the proper guidelines range, the

district court was laboring under the mistaken view that the

guidelines range was ten to sixteen months. Had the district court

faced the proper guidelines range of six to twelve months, it seems

likely that the district court would not have imposed a twelve-

month sentence — the top end of the range.    Accordingly, we grant

the motion to remand for resentencing.       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.



                                                           REMANDED




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