                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4088



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


SAUL BARRERA-RENTERIA,

                                            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-04-310)


Submitted:   June 21, 2006                 Decided:    July 18, 2006


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


David B. Freedman, WHITE AND CRUMPLER, Winston-Salem, North
Carolina, for Appellant.   Angela Hewlett Miller, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Saul   Barrera-Renteria      appeals    his   eighty-four   month

prison sentence imposed following his guilty plea to illegal

reentry after having been convicted of a felony and being deported,

in violation of 8 U.S.C. §§ 1326 (a), (b)(2) (2000).           He does not

appeal his conviction.          We vacate his sentence and remand for

resentencing in light of United States v. Booker, 543 U.S. 220, 125

S. Ct. 738 (2005).

           In Booker, the Supreme Court concluded the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the judge

by a preponderance of the evidence violated the Sixth Amendment.

Booker,   125   S.   Ct.   at   746,   750.   The     Court   remedied   the

constitutional violation by severing two statutory provisions, 18

U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing

courts to impose a sentence within the applicable guideline range),

and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (appellate

standards of review for guideline issues), thereby making the

guidelines advisory.       Booker, 125 S. Ct. at 756-57.

           Barrera-Renteria contends that the two criminal history

points assessed for committing the instant offense while on parole

were based upon facts found by the judge, and not admitted to, in

violation of his Sixth Amendment rights.          Because Barrera-Renteria

preserved this issue by objecting to the presentence report (“PSR”)


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based upon Blakely v. Washington, 542 U.S. 296 (2004), we review

for harmless error.       When a defendant preserves a Sixth Amendment

error,     this   court   “must   reverse   unless   [it]   find[s]   this

constitutional error harmless beyond a reasonable doubt, with the

Government bearing the burden of proving harmlessness.” See United

States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).            In this

case, any presumed error is harmless because even removing the two

criminal history points, Barrera-Renteria still has ten criminal

history points, and would remain in Criminal History Category V,

which applies to defendants with ten to twelve criminal history

points.    United States v. White, 405 F.3d 208, 223 (4th Cir. 2005).

No reversible Sixth Amendment error occurred.

            Barrera-Renteria also asserts that the district court’s

mandatory application of the Guidelines constitutes reversible

error.    Because Barrera-Renteria raised a timely Blakely objection

at sentencing, he has preserved his claim of statutory Booker

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

2006).     Thus, we review Barrera-Renteria’s claim for harmless

error, which places “the burden . . . on the Government to show

that such an error did not affect the defendant’s substantial

rights.”    Id. at 416.    The Government concedes that it cannot show

the error was harmless and cannot satisfy its burden of showing the

error did not affect Barrera-Renteria’s substantial rights.           There

is no indication from the record how the district court would


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sentence Barrera-Renteria under the current advisory guidelines

system.    Therefore, Barrera-Renteria must be resentenced.*

            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 the 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.     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.

            Accordingly, we vacate Barrera-Renteria’s sentence and

remand for resentencing in light of Booker.                  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

     *
      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 Barrera-Renteria’s sentencing.

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