                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 04-4733



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

             versus


JOHN CARROLL WALL, JR.,

                                                Defendant - Appellant.



Appeal from the United States District Court for the Middle District
of North Carolina, at Durham. William L. Osteen, District Judge.
(CR-04-8)


Submitted:    June 15, 2005                   Decided:   July 14, 2005


Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Robert L. McClellan, J. Marshall Shelton, IVEY, MCCLELLAN, GATTON &
TALCOTT, L.L.P., Greensboro, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Paul A. Weinman, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              In April 2004, John Carroll Wall, Jr., was found guilty

by a jury of bank robbery, in violation of 18 U.S.C. § 2113(a)

(2000), armed bank robbery, in violation of 18 U.S.C. § 2113(d)

(2000), and the carrying and use of firearms during and in relation

to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)

(2000).   The first count of the indictment merged with the second,

for   which    the    district   court   sentenced   Wall   to   108   months’

imprisonment.        The third count carried a mandatory minimum sentence

of 84 months’ imprisonment under 18 U.S.C. § 924(c)(1)(A)(ii)

(2000).

              On appeal, Wall first contends that the district court

improperly issued a jury instruction concerning aiding and abetting,

thereby misleading the jury.        The decision to give or not to give a

jury instruction, as well as the content of the instruction, is

reviewed for abuse of discretion.           United States v. Russell, 971

F.2d 1098, 1107 (4th Cir. 1992).             Here, strong circumstantial

evidence linked Wall with the bank robbery; however, because the two

robbers’ faces were concealed, witnesses at the scene could not

positively identify Wall.        Furthermore, of the two robbers, one was

a more active participant.        The district court, concerned that the

question of which robber “actually [took the money] and put it in

the bag himself” might confuse the jury, deemed the aiding and

abetting instruction appropriate.


                                    - 2 -
             “[W]hen a case is submitted to a jury on two adequate

legal theories and the jury returns a general verdict of guilty,

affirmance is appropriate so long as the evidence is sufficient to

support a conviction on either theory.”           United States v. Seidman,

156   F.3d   542,   551   (4th   Cir.   1998).    Moreover,   when   evidence

presented at trial supports an aiding and abetting theory, the court

may, if it deems such an instruction to be appropriate, instruct on

that theory even though it was not argued by the Government.           United

States v. Horton, 921 F.2d 540, 544 (4th Cir. 1990).           Accordingly,

we conclude that the district court did not abuse its discretion by

issuing the aiding and abetting instruction.

             Wall also appeals his sentence on the second count of the

indictment, for which he received 108 months’ imprisonment.               The

sentence includes the district court’s enhancement, under U.S.

Sentencing Guidelines Manual § 3B1.1(c) (2003), on the ground that

Wall was the organizer or leader of a criminal activity that

involved fewer than five participants.1          In United States v. Booker,

125 S. Ct. 738 (2005), the Supreme Court held that the federal

Sentencing Guidelines scheme, under which courts were required to

impose sentencing enhancements based on facts found by the court by

a preponderance of the evidence, violated the Sixth Amendment




      1
      The sentence pertaining to the second count contains two other
enhancements that Wall does not challenge on appeal.

                                    - 3 -
because of its mandatory nature.     Id. at 746 (Stevens, J., opinion

of the Court).

          At the sentencing hearing, the district court entered into

the record an objection for Wall on the basis of Booker’s precursor,

Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004) (holding that

maximum sentence court can impose must be based solely on facts

“reflected in the jury verdict or admitted by the defendant”).       The

Government concedes that the district court’s error2 in including

this enhancement was not harmless.     See Fed. R. Crim. P. 52(a).

          Accordingly, we affirm Wall’s convictions, vacate his

sentence on the second count, and remand his case to the district

court for resentencing consistent with Booker.3



                                                    AFFIRMED IN PART,
                                        VACATED IN PART, AND REMANDED


     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 Wall’s sentencing.
     3
       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
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 ranged and
. . . reasonable.” Id. at 546-47.

                               - 4 -
