                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4674



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


WILLIAM H. JOHNSON,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph Robert Goodwin,
District Judge. (CR-04-42)


Submitted:   April 6, 2005                 Decided:   June 21, 2005


Before WILKINSON, LUTTIG, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, Lisa G. Johnston, Special 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Unpublished opinions are not binding precedent in this circuit.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:

           William Harold Johnson pled guilty to possession of a

firearm by a convicted felon. The district court sentenced Johnson

under   the   federal   sentencing   guidelines    to   eighteen   months

imprisonment. This sentence included an enhancement for possessing

a stolen firearm. The facts underlying this enhancement were found

by the district court by a preponderance of the evidence and were

neither charged in the indictment nor admitted by Johnson at the

guilty plea hearing.

           Citing Blakely v. Washington, 124 S. Ct. 2531 (2004),

Johnson argues that his sentence is unconstitutional because it was

based on facts that were neither charged in the indictment nor

proven beyond a reasonable doubt.    He made the same argument in the

district court and was overruled based upon this court’s ruling in

United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), cert.

granted and judgment vacated, 125 S. Ct. 1051 (2005).               After

Johnson’s sentencing, the Supreme Court decided United States v.

Booker, 125 S. Ct. 738 (2005), and 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 because

of its mandatory nature.    Id. at 746, 750.      The Court remedied the

constitutional violation by making the guidelines advisory through




                                 - 2 -
the removal of two statutory provisions that had rendered them

mandatory.   Id. at 746, 756-57.

          In light of Booker, we find that the district court erred

in sentencing Johnson under the mandatory guideline procedure.1

See United States v. White, 405 F.3d 208 (4th Cir. 2005) (holding

that imposition of a sentence under the mandatory guidelines regime

is error).   In addition, because the appropriate guideline range

without the firearm enhancement would have permitted a lower

sentence, we find that the error was not harmless.      See United

States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (holding that,

on harmless error review, Government bears the burden of showing

that the sentence on remand would not be less than that imposed).

Therefore, we affirm Johnson’s conviction, vacate his sentence and

remand for proceedings consistent with Booker.2   While we express


     1
      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 Johnson’s sentencing. See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”
if “the law at the time of trial was settled and clearly contrary
to the law at the time of appeal”).
     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.
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), and then impose a sentence. Hughes, 401 F.3d at 546.
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). Hughes, 401 F.3d at 546. The sentence must

                               - 3 -
no opinion on an appropriate sentence, we do note that, contrary to

Johnson’s argument on appeal, the district court retains the

authority to sentence Johnson to a term of supervised release.   We

deny Johnson’s motion to expedite as moot.   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




be within the statutorily prescribed range and reasonable.   Id. at
547.

                              - 4 -
