                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4064


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ROBERTO E. DELEON,

                Defendant – Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 12-6558)


Submitted:   July 26, 2013               Decided:   September 12, 2013


Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant.     Paul Michael Cunningham,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.    ON BRIEF: James Wyda, Federal Public Defender,
Baltimore, Maryland, for Appellant.    Rod J. Rosenstein, United
States Attorney, Paul E. Budlow, Assistant United States
Attorney, Julia Jarrett, Student Intern, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     A jury convicted Roberto DeLeon of second-degree murder, in

violation of 18 U.S.C. § 1111(a), and assault causing serious

bodily    injury,   in     violation      of       18    U.S.C.    §     113(a)(6).         At

sentencing, the district court found that the victim, DeLeon’s

stepson    Jordan   Peterson,       was       under      the    age     of    eighteen     and

sentenced     DeLeon      pursuant       to       18    U.S.C.     §     3559(f),        which

establishes mandatory minimum sentences for crimes of violence

if the victim is under eighteen.                        On appeal, we affirmed the

district court over DeLeon’s objection that the trial judge’s

use of judicial factfinding to find Jordan’s age, a fact that

increased    the    mandatory      minimum         sentences,          violated     DeLeon’s

Sixth Amendment rights.            United States v. DeLeon, 678 F.3d 317,

331-33    (4th   Cir.     2012).     The       Supreme         Court    granted     DeLeon’s

petition for writ of certiorari, vacated this court’s judgment,

and remanded for further consideration in light of Alleyne v.

United    States,    133     S.    Ct.    2151         (2013).         Because      of    this

intervening      change    in     law,    we      vacate       DeLeon’s      sentence     and

remand to the district court for resentencing.



                                           I.

     At    sentencing,      the    district            court    found,       over   DeLeon’s

objection, that Jordan was eight-years old, subjecting DeLeon to

heightened mandatory minimum prison terms of thirty years for

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the murder conviction, and ten years for the assault conviction.

After reexamining trial evidence, the district court determined

that there was “clear evidence” that Jordan was eight-years old

and,       regardless,      that      his     age       was    not    a     factual    issue      that

needed to be presented to the jury.                           J.A. 3112. 1       As a result of

the district court’s finding, the mandatory minimum sentence for

DeLeon’s second-degree murder conviction increased from zero to

thirty       years,      and       from   zero      to    ten        years    for     his    assault

conviction.              The       district      court         sentenced       DeLeon        to     the

mandatory         minimum      on    both     counts          with    the    sentences       running

concurrently.

       On        appeal,    DeLeon        challenged           his    sentence        on    multiple

grounds.          His appeal focused on establishing that the victim’s

age was an element of the offense, rather than a sentencing

factor, and was thus a fact that had to be submitted to the jury

and    found       beyond      a    reasonable          doubt    under       United        States    v.

O’Brien, 130 S. Ct. 2169, 2175 (2010).                               In addition, he argued

that       any    fact     that     mandates        a    judge       impose     a     more    severe

sentence than the judge would otherwise have the discretion to

impose       must    be     submitted       to      the       jury    and     proven       beyond     a

reasonable doubt.


       1
       All references to the “J.A.” are to the Joint Appendix
compiled by the parties.



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       The     bulk     of    this     court’s      decision      revolved    around        the

O’Brien question.             We concluded that age is a sentencing factor

under 18 U.S.C. § 3559(f) that can be found by a preponderance

of the evidence.               At the time, DeLeon’s judicial factfinding

argument was foreclosed by Harris v. United States, 536 U.S.

545,    568     (2002)       (holding     that      increasing     mandatory        minimums

based     on    judicial           factfinding      does    not    violate     the     Sixth

Amendment).

       After     we     decided        DeLeon’s      appeal,       the   Supreme       Court

overruled Harris in Alleyne and held that facts which increase

mandatory minimum sentences must be admitted or submitted to the

jury and established beyond a reasonable doubt.                          133 S. Ct. at

2163.     Thus, the district court’s finding that Jordan was eight-

years old--a finding that increased the the mandatory minimum

sentences--is impermissible.                  We reconsider DeLeon’s sentence in

light of this development.



                                              II.

       DeLeon     raised       the    Sixth    Amendment       objection      to    judicial

factfinding       before       the     district      court;    thus,     we   review        his

argument for harmless error.                     United States v. Robinson, 460

F.3d 550, 557 (4th Cir. 2006).                      Under this standard, we must

reverse        unless        the     government       can     demonstrate          beyond     a

reasonable doubt that “‘the court would have imposed the same

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sentence in the absence of the constitutional error.’”                              Id. at

558 (quoting United States v. Shatley, 448 F.3d 264, 267 (4th

Cir. 2006)).

       The government has not met its burden.                      We recognize that

the district court could, at least in theory, arrive at the same

sentences      in     this    case   via    the    guidelines. 2         In   its   brief,

however, the government admits that the statutory minimum that

DeLeon faced was severe.                   Appellee’s Br. 98.            Likewise, the

district court expressed its displeasure with the thirty-year

mandatory       minimum       prison   term       for   the   second-degree         murder

conviction      in     this    case,   noting       several     mitigating      factors.

J.A.       3140-42.       Although     the    judge      also    commented      that    he

believed anything less than twenty years for DeLeon would be

inappropriate,         J.A.    3141,   we    cannot     say     beyond    a   reasonable

doubt that the error did not affect the sentence imposed.                               We




       2
       Calculating the advisory guideline range for DeLeon’s
second-degree murder conviction without the mandatory minimum,
the district court found that DeLeon would be subject to a
prison sentence of 292 to 365 months.      J.A. 3116.   With the
mandatory minimum included, the lower end of the guidelines
range rose to 360 months.     Id.    The district court did not
calculate the guidelines range for the assault charge without
the   mandatory   minimum.      Neither   did   the   presentence
investigation report.      As to that offense, the ten-year
mandatory minimum prison term imposed by the district court is
equal to the statutory maximum for the offense.      18 U.S.C. §
113(a)(6).



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are therefore constrained to remand the case to the district

court for resentencing.



                              III.

     For the foregoing reasons, we vacate the district court’s

judgment and remand the case for resentencing.



                                             VACATED AND REMANDED




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