                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4750



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


THOMAS JOSEPH DALTON,

                                                Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-03-739)


Submitted:   August 26, 2005                 Decided:   October 5, 2005


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


H. Stanley Feldman, Charleston, South Carolina, for Appellant.
Jonathan S. Gasser, Acting United States Attorney, Miller W.
Shealy, Jr., Assistant United States Attorney, Charleston, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Thomas      Joseph     Dalton      pled   guilty,    without   a    plea

agreement, to one count of credit card fraud, in violation of 18

U.S.C. § 1029 (2000).           The district court sentenced Dalton under

the federal sentencing guidelines to 105 months’ imprisonment and

announced an alternative sentence of 120 months’ imprisonment

pursuant to our directive in United States v. Hammoud, 378 F.3d 426

(4th Cir.) (order), opinion issued by 381 F.3d 316 (4th Cir. 2004)

(en banc), vacated, 125 S. Ct. 1051 (2005).

           Dalton has appealed, challenging his sentence under the

Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738

(2005).       Dalton    preserved      this     issue    by   objecting   to    the

presentence report based on Blakely v. Washington, 542 U.S. 296

(2004), and our review is de novo.              See United States v. Mackins,

315 F.3d 399, 405 (4th Cir. 2003).              When a defendant preserves a

Sixth   Amendment      error,    we   “must    reverse   unless   we   find    this

constitutional error harmless beyond a reasonable doubt, with the

Government bearing the burden of proving harmlessness.”                        Id.

(citations omitted); see United States v. White, 405 F.3d 208, 223

(4th Cir. 2005) (discussing difference in burden of proving that

error affected substantial rights under harmless error standard in

Fed. R. App. P. 52(a), and plain error standard in Fed. R. App. P.

52(b)).




                                       - 2 -
          We conclude that Dalton is entitled to be resentenced

under Booker,1 as the Government concedes.2 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.      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.

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 547.

          As Dalton raises no issues on appeal relating to his

conviction, we affirm his conviction, vacate the sentence imposed

by the district court, and remand for resentencing consistent with

Booker.   See Hughes at 546 (citing Booker, 125 S. Ct. at 764-65,


     1
      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 Dalton’s sentencing.
     2
      While the Government seeks to have this court impose the
district court’s stated alternative sentence, we find that such
action on the part of this court would unduly constrain the
district court’s authority to impose a revised sentence.
Accordingly, we decline to do so, leaving the imposition of a
revised sentence for the district court’s plenary consideration.

                                 - 3 -
767 (Breyer, J., opinion of the Court)).    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 IN PART,
                                                     AND REMANDED




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