                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 04-4993



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


JAMES PAUL ANDREW STILLWELL,

                                               Defendant - Appellant.


                               No. 04-5042



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

             versus


JOSEPH HESS,

                                               Defendant - Appellant.


Appeals from the United States District Court for the Western
District of Virginia, at Abingdon.   Glen M. Williams, Senior
District Judge. (CR-04-10)


Submitted:    January 13, 2006                Decided:   March 7, 2006


Before WILKINS, Chief Judge, and WILLIAMS and SHEDD, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Monroe Jamison, Abingdon, Virginia, for Appellant Joseph Hess; Sol
Zalel Rosen, Washington, D.C., for Appellant James Stillwell. John
L. Brownlee, United States Attorney, Randy Ramseyer, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

     After a jury trial, James Stillwell and Joseph Hess were both

convicted of possession of a stolen firearm under 18 U.S.C. §

922(j) and possession of a firearm while being an unlawful user of

a controlled substance in violation of 18 U.S.C. § 924(g)(3).   In

addition, Stillwell was convicted of conspiring to possess with

intent to distribute 60 kilograms or more of marijuana in violation

of 21 U.S.C. § 846, and possessing a firearm in furtherance of a

drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Hess

was convicted of possessing a firearm after having been convicted

of a crime punishable by a term of imprisonment exceeding one year

in violation of 18 U.S.C. § 924(g)(1), and corruptly persuading

another with intent to influence that person’s testimony and

communication to law enforcement in violation of 18 U.S.C. §§

1512(b)(1), (3). Stillwell received a 144-month sentence, and Hess

received a 135-month sentence.

     On appeal, Stillwell and Hess each assert several grounds for

the reversal of their convictions.     Stillwell argues that: (1)

there was insufficient evidence on all counts to convict, (2) the

district court abused its discretion in denying his motion to

sever, (3) the district court erred by admitting statements made by

him at police headquarters contrary to Miranda v. Arizona, 384 U.S.

436 (1966), (4) the district court erred in a pretrial ruling based

on Fed. R. Evid. 104(d), and (5) the district court abused its


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discretion in giving a charge to the jury under Allen v. United

States, 164 U.S. 492 (1896).           Hess argues that: (1) there was

insufficient evidence on all counts to convict, (2) the district

court abused its discretion by refusing to allow him to mention his

state acquittal on the same charges, (3) the district court abused

its discretion by refusing to allow cross-examination of his

nephew, Jonathan Hess, based on the timing of Jonathan’s indictment

for stolen firearms, (4) the district court erred in admitting co-

defendant statements under Bruton v. United States, 391 U.S. 123

(1968), and (5) the district court erred in admitting evidence of

witness tampering such that the charge was duplicitous.                     Our

thorough review of the record discloses no reversible error.

Accordingly, we affirm the convictions.

        Hess further contends that he is entitled to resentencing

based on the Supreme Court’s decision in United States v. Booker,

543 U.S. 220 (2005).      Because Hess did not preserve his objection

below, our review is for plain error.        See United States v. White,

405 F.3d 208, 215 (4th Cir. 2005).         In White, we recognized that a

sentence that does not violate the Sixth Amendment may constitute

plain error when it appears from the record that the district court

would    have   imposed   a   lesser   sentence   if   it   had   treated   the

guidelines as advisory.       405 F.3d at 223.    While the district court

imposed a sentence of 135 months under a mandatory guidelines

scheme, it also provided an alternative sentence of 115 months


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after treating the guidelines as advisory as suggested by United

States v. Hammoud, 381 F.3d 316, 353-54 (4th Cir. 2004) (en banc),

vacated, 543 U.S. 1097 (2005).   Because this alternative sentence

is substantially lower than the 135-month sentence imposed by the

district court, the record provides a nonspeculative basis for

concluding that the treatment of the guidelines as mandatory

affected the district court’s selection of the sentence imposed.

See White, 405 F.3d at 223-25.       Thus, we agree that Hess is

entitled to resentencing consistent with Booker.

     In sum, we affirm the convictions of both Stillwell and Hess.

However, we vacate Hess’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.



                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




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