                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4160



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


FERNANDO RAMIREZ CASTILLO, a/k/a       Fernando
Ramirez, a/k/a Fernando Cervantes,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-03-221)


Submitted:   March 31, 2006                 Decided:   April 27, 2006


Before MICHAEL, KING, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Kimberly Yvette Best, BEST LAW FIRM, PLLC, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Fernando Ramirez Castillo pled guilty to two counts of

possession of a firearm by a person previously convicted of a

felony and two counts of possession of body armor by a person

previously convicted of a felony.         18 U.S.C. §§ 922(g), 924(a)(7),

931 (2000).    The district court sentenced him to concurrent terms

of 46 months on the firearm charges and concurrent terms of 36

months on the body armor charges, with the sentences to run

concurrently with each other.             Castillo appeals his sentence,

citing United States v. Booker, 543 U.S. 220 (2000), and asserting

that the district court erred in making factual findings that

increased his criminal history category and thus his sentencing

range and also that he should be resentenced under an advisory

Guidelines scheme.      We vacate Castillo’s sentence and remand for

resentencing.

             Castillo   contends   that    the    district    court   committed

statutory Booker error by treating the Sentencing Guidelines as

mandatory,    not   advisory.      Because       Castillo    raised   a   timely

objection at sentencing based upon Blakely v. Washington, 542 U.S.

296 (2004), he has preserved his claim of statutory Booker error.

United States v. Rodriguez, 433 F.3d 411, 415-16 (4th Cir. 2006).

Thus, we review Castillo’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.     Our


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review of the transcript of the sentencing hearing leads us to

conclude that the Government has not met its burden to show that

the error is harmless.          The district court’s silence on how it

would apply the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2005) in ascertaining a proper sentence for Castillo must be

construed in Castillo’s favor.         Rodriguez, 433 F.3d at 416.        Thus,

we conclude that Castillo is entitled to be resentenced.1

               Accordingly, we vacate Castillo’s sentence and remand for

resentencing consistent with Booker and Hughes.2            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




       1
      Just as we stated in United States v. Hughes, 401 F.3d 540,
(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
[Castillo’s] sentencing.” Id. at 545 n.4.
       2
      In light of our vacatur for statutory Booker error, we need
not decide whether the district court committed Sixth Amendment
error. See Rodriguez, 433 F.3d at 416 n.8.

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