                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4855



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


TRAVIS MCDANIEL,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-04-39)


Submitted:   July 27, 2005                 Decided:   August 24, 2005


Before NIEMEYER, WILLIAMS, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Joshua C. Hanks, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Travis McDaniel pled guilty, without a plea agreement, to

possessing a stolen firearm under 18 U.S.C. § 922(j) (2000).               His

guideline range was six to twelve months of imprisonment.                  The

district court, however, did not sentence McDaniel to a term of

imprisonment. Rather, the court sentenced McDaniel to sixty months

of probation, conditioned on a six-month term of home confinement

under U.S. Sentencing Guidelines Manual § 5B1.1(a)(2) (2003).               On

appeal, McDaniel argues that the district court was not required to

impose     the   home   confinement    condition   for    his   sentence    of

probation.

            McDaniel clearly objected in the district court to the

mandatory nature of the Federal Sentencing Guidelines, relying on

the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296

(2004), as authority for his position.             Since the parties have

filed their briefs, the Supreme Court has expanded its decision in

Blakely.    See United States v. Booker, 125 S. Ct. 738 (2005).             In

Booker 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 of the evidence violated the Sixth Amendment. Id. at

746, 750 (Stevens, J., opinion of the Court).            The Court remedied

the constitutional violation by severing two statutory provisions,

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


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

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

appellate standards of review for guideline issues), thereby making

the guidelines advisory. Booker, 125 S. Ct. at 756-67 (Breyer, J.,

opinion of the Court).        This remedial scheme applies to any

sentence imposed under the mandatory guidelines, regardless of

whether   the   sentence   violates    the   Sixth   Amendment.   United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing Booker,

125 S. Ct. at 769 (Breyer, J., opinion of the Court)).

          Because McDaniel timely objected below to the mandatory

imposition of the Guidelines to his sentence, we review for harmless

error.1 The Government bears the burden in harmless error review of

showing beyond a reasonable doubt that the error did not affect the

defendant’s substantial rights.       United States v. Mackins, 315 F.3d

399, 405 (4th Cir. 2003).    The Government does not meet this burden

because the district court gave no indication of how it would have

sentenced McDaniel if it had appreciated that it was not bound by

the guidelines.     We would have to speculate that the district

court’s error in thinking itself bound by the guidelines did not




     1
      Indeed, the district court agreed at the sentencing hearing
to stay execution of McDaniel’s home confinement pending appeal of
the issue. (J.A. 19).

                                 - 3 -
affect the sentence.          In light of Booker, we vacate McDaniel’s

sentence and remand the case for resentencing.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.    See Hughes, 401 F.3d at 546 (applying Booker on plain

error review).       The court should consider this sentencing range

along with the other factors described in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and then impose a sentence.                 Id. & n.5.

If that sentence falls outside the Guidelines range, the court

should explain its reasons for the departure as required by 18

U.S.C.A. § 3553(c)(2) (West Supp. 2005).            Id.   The sentence must be

“within the statutorily prescribed range and . . . reasonable.” Id.

at 547.

             Accordingly, we affirm McDaniel’s conviction, which he

does   not   contest,   but    vacate    and    remand    for   resentencing    in

accordance with this opinion.            We dispense with oral argument

because the facts and legal contentions are adequately presented in




       2
      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 McDaniel’s sentencing.

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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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