                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4901



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


BAXTER SMITH JAMES,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:03-cr-00006-3)


Submitted:   April 20, 2007                 Decided:   August 10, 2007


Before WILLIAMS, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Gretchen C.F. Shappert, United States Attorney, Keith
Michael Cave, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Baxter James pled guilty to conspiracy to possess with

intent to distribute methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (2000).       The district court sentenced James to

seventy   months’    imprisonment     and    recommended   an    alternative

sentence of eighteen months’ imprisonment in light of Blakely v.

Washington, 542 U.S. 296 (2004), and United States v. Hammoud, 381

F.3d 316, 353-54 (4th Cir. 2004) (en banc).          James did not appeal.

           Instead, James filed a 28 U.S.C. § 2255 (2000) motion in

district court alleging ineffective assistance of counsel due to

his   attorney’s    failure    to   appeal   his   sentence     under   United

States v. Booker, 543 U.S. 220 (2005), and seeking to effectuate

the alternative sentence of eighteen months’ imprisonment as his

actual sentence.     The court entered an amended judgment imposing

the same sentences and conditions as the original judgment form,

and James appealed.

           In his opening brief, James challenged his sentence,

contending the district court treated the sentencing guidelines as

mandatory rather than advisory.       James claimed this error affected

his substantial rights.       See United States v. White, 405 F.3d 208,

223-24 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).                    The

Government filed a motion to dismiss the appeal, asserting James

waived his right to appeal the sentence by signing a waiver of

appellate rights contained in the plea agreement.          We directed the


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parties to file supplemental briefs addressing whether the seventy-

month guidelines sentence, re-imposed by the district court after

Booker     issued,      remains    operable.       The     parties    submitted

supplemental briefs as directed.

              In its supplemental brief, the Government concedes the

seventy-month sentence is not operative and agrees with James that

his    sentence   should    be    vacated   and   the    matter    remanded    for

resentencing.         Thus, the Government has abandoned its earlier

position that appellate review is precluded by the waiver of

appellate rights.       Accordingly, we deny the Government’s motion to

dismiss.      See United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).

       Furthermore, although this Court is “not at liberty to vacate

and remand for resentencing on the Government’s concession of error

alone,” United States v. Rodriguez, 433 F.3d 411, 414-15 n.6 (4th

Cir. 2006) (citations omitted), we find that the district court’s

alternative sentence provides a nonspeculative basis for concluding

that    the   court’s    treatment    of    the   sentencing      guidelines   as

mandatory affected the selection of the sentence imposed.                      See

White, 405 F.3d at 223.           Accordingly, we vacate the sentence re-

imposed    by   the    district    court    and   remand   for    re-sentencing

consistent with Booker.




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          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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