                            ON REHEARING

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4831



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


SANDAKO MESHAWN BRANDON,

                                               Defendant - Appellant.



Appeal from the United States District         Court for the Middle
District of North Carolina, at Durham.          James A. Beaty, Jr.,
District Judge. (CR-02-193)


Submitted:   September 20, 2006            Decided:   January 23, 2007


Before WILKINSON, LUTTIG,1 and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON, P.A.,
Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Sandra J. Hairston, L. Patrick Auld,
Assistant United States Attorneys, Greensboro, North Carolina, for
Appellee.


     1
      Judge Luttig was a member of the original panel but did not
participate in this decision on rehearing. This opinion is filed
by a quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           Sandako Meshawn Brandon appeals his 360-month sentence

imposed   following   remand   from   this   court2   for   one    count   of

conspiracy to distribute cocaine base, in violation of 21 U.S.C.

§ 846, and one count of distributing cocaine base, in violation of

21 U.S.C. § 841(a).        On this second appeal, we affirmed his

sentence, having previously affirmed his conviction.           Brandon now

petitions for rehearing.       Because we cannot be certain of the

district court’s sentencing explanations following our earlier

remand, we think the most prudent course is simply to grant the

petition and have the district court clarify its intentions on

resentencing.

           Brandon first contends that the district court’s finding

that he qualified as a career offender was impermissibly based upon

facts not alleged in the indictment or admitted to, in violation of

his Sixth Amendment rights.     Because Brandon preserved this issue

by objecting under Blakely v. Washington, 542 U.S. 296 (2004), to

being sentenced as a career offender, we review for harmless error.

See United States v. Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006).

           In United States v. Booker, 543 U.S. 220 (2005), the

Supreme Court held that the mandatory manner in which the federal

sentencing    guidelines   required    courts   to    impose      sentencing

enhancements based on facts found by the court by a preponderance


     2
      See United States v. Brandon, 363 F.3d 341 (4th Cir. 2004).

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of the evidence violated the Sixth Amendment. The Court remedied

the constitutional violation by severing two statutory provisions,

18 U.S.C.A. § 3553(b)(1) (requiring sentencing courts to impose a

sentence within the applicable guideline range), and 18 U.S.C.A.

§   3742(e)     (setting       forth    appellate    standards       of   review     for

guideline issues), thereby making the guidelines advisory.

              The    Supreme    Court    nevertheless      reaffirmed        its   prior

holding    in       Apprendi    that    “[a]ny     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.”              Booker, 543 U.S. at 244.              This

court   has     held    that    the    application    of    the     career    offender

enhancement falls within the exception for prior convictions where

the facts are undisputed, making it unnecessary for the district

court to engage in further fact-finding about a prior conviction.

See United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005);

see also Shepard v. United States, 544 U.S. 13, 16 (2005) (holding

that a court’s inquiry as to disputed facts in connection with a

prior conviction is limited to the terms of the charging document,

a   plea   agreement,      a    transcript    of    the    plea     colloquy,      or   a

comparable judicial record). Accordingly, Brandon’s claim must

fail.




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            Moreover,       we    reject   Brandon’s     contention       that      under

Booker, the district court violated his Sixth Amendment rights by

making impermissible factual findings in determining his criminal

history category.          In Shepard, the Supreme Court recognized that

the prior conviction exception survived Booker, but held the Sixth

Amendment protections apply to “a disputed fact . . . about a prior

conviction.”         Shepard, 544 U.S. at 25.         Instead of challenging the

accuracy or the “fact” of his prior convictions, Brandon asserts

that the increase required more than just judicial notice of the

“fact” of the prior convictions because the district court had to

consider the type of conviction and whether it qualified as a

violent felony, the length and type of sentence imposed, and

recency    of    the    prior     convictions    in    relation      to   the   instant

offense.        We    conclude,     however,    that    the   district       court    was

required    only      to   take    judicial    notice    that      Brandon    had    been

convicted and when the conviction occurred, both facts that are a

matter     of    public      record     and     require       no     interpretation.

Accordingly, we conclude that the district court’s recognition of

the existence of Brandon’s prior convictions and assessment of the

timing of those convictions was not in violation of his Sixth

Amendment rights.

            Brandon’s Blakely objection, however, also preserves a

claim that the district court committed statutory error by treating

the Sentencing Guidelines as mandatory. See Rodriguez, 433 F.3d at


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414.       Because the statutory error was preserved below, we review

for harmless error.      Under harmless error review, the burden is on

the government to prove that the district court would not have

imposed a lesser sentence if it had known that the Guidelines were

not mandatory.      See id. at 415-16.   We conclude that the government

has not satisfied that burden.

              When sentencing Brandon, the district court announced an

alternate sentence of 262 months. The government contends that this

alternate sentence does not reflect the sentence that the court

would have given under an advisory sentencing scheme because the

district court stated that the alternate sentence was based on an

assumption that the career offender guidelines would not apply

after Blakely.      The district court, however, also referred to our

then-recent opinion in United States v. Hammoud, 381 F.3d 316 (4th

Cir. 2004) (en banc),3 which required district courts to announce

an alternate sentence pursuant to 18 U.S.C.A. § 3553(a) “treating

the guidelines as advisory only.”        Id. at 353.   This reference to

Hammoud, when considered with the court’s statement that the

alternate sentence resulted from the removal of the career offender

provisions from the sentencing calculation, leaves us uncertain as

to the true nature of the alternate sentence announced by the

court.       And contrary to the government’s suggestion, we do not



       3
      After deciding Booker, the Supreme Court vacated and remanded
Hammoud. See Hammoud v. United States, 543 U.S. 1097 (2005).

                                  - 6 -
believe that the uncertainty can be resolved by referring to the

district court’s explanation in a later, unrelated case, of the

court’s general practices with regard to alternate sentences.

Because the government has not proved that the district court would

not have imposed a lesser sentence under an advisory guidelines

scheme, we conclude that Brandon is entitled to resentencing.

          Accordingly, we vacate Brandon’s sentence and 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.



                                              VACATED AND REMANDED




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