                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4011



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ROBERT ALTON HARRIS,

                                            Defendant - Appellant.


     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-7182)


Submitted:   October 21, 2005          Decided:     November 21, 2006


Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Andrew J. Katz, THE KATZ WORKING FAMILIES’ LAW FIRM, L.C.,
Charleston, West Virginia, for Appellant.     Charles T. Miller,
Acting United States Attorney, Stephanie L. Haines, Assistant
United States Attorney, Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Robert Alton Harris appeals the forty-one month sentence

imposed   following      a    guilty   plea    for    sending    a   threatening

communication to his now ex-wife through the United States mail, in

violation of 18 U.S.C. § 876 (2000). Harris initially appealed his

sentence on January 6, 2004; this court affirmed.                    See United

States    v.   Harris,       No.   04-4011     (4th   Cir.   July    30,   2004)

(unpublished). The United States Supreme Court granted certiorari,

vacated this court’s decision, and remanded for further proceedings

in light of United States v. Booker, 543 U.S. 220 (2005).                    The

parties were directed to file supplemental briefs addressing the

impact of Booker and its progeny upon the validity of Harris’

sentence.

            Harris now claims his sentence was imposed in violation

of Booker.     Because Harris raised his Booker challenge for the

first time on appeal, we review for plain error.             See United States

v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).                   As set forth in

United States v. Olano, 507 U.S. 725, 732 (1993), plain error is

present if:     (1) there was error; (2) it was plain; and (3) it

affected the defendant's substantial rights.             If these conditions

are met, we may then exercise our discretion to notice the error,

but only if it “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (internal quotation marks




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and alterations omitted).      In light of Booker, we find plain error

under Olano in regard to Harris’ sentence.

            First, Harris contends that the district court committed

non-constitutional error by treating the guidelines as mandatory,

rather than advisory, as Booker requires.             Although we held in

United States v. White, 405 F.3d 208, 216-17 (4th Cir.), cert.

denied, 126 S. Ct. 668 (2005), that treating the guidelines as

mandatory   constitutes     plain   error,    our   review   of   the   record

convinces us that there is no nonspeculative basis on which we

could conclude that the district court would have sentenced Harris

to a lower sentence had the court proceeded under an advisory

guidelines scheme.         See id. at 225.          Thus, Harris fails to

demonstrate   that   the    plain   error    in   sentencing   him   under   a

mandatory sentencing guidelines scheme affected his substantial

rights.

            Second, Harris contends that the district court sentenced

him in violation of the Sixth Amendment because the court applied

a two-level enhancement under U.S. Sentencing Guidelines Manual

(“USSG”) § 2A6.1(b)(2) (2003), based upon the court’s conclusion

that Harris wrote at least five letters that contained threats

against the victim or her family. Although Harris’ Sixth Amendment

contention was foreclosed by our precedent at the time of his

sentencing, Booker has since “abrogated our previously settled

law,” rendering the error plain.       Hughes, 401 F.3d at 548.         Third,


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the error was prejudicial, in that Harris’ forty-one month sentence

was greater than the thirty-three month maximum authorized by the

facts to which Harris pled guilty.            Id. at 548-49.

            To    affirm   Harris’    sentence   despite    the   error   would

seriously affect the fairness, integrity, or public reputation of

these judicial proceedings.          In the wake of Booker, the Guidelines

are   to   be    treated   as   advisory   (rather   than   mandatory),    and

sentences that fall within the statutorily prescribed range are

reviewable only for reasonableness. Id. at 546 (citing Booker, 543

U.S. at 244).      The record before us does not indicate what sentence

the court would have imposed on Harris had it exercised discretion

under 18 U.S.C. § 3553(a) and treated the Guidelines as merely

advisory.       Although it is possible that Harris will receive the

same sentence on remand, “[t]his possibility is not enough to

dissuade us from noticing the error.”            Hughes, 401 F.3d at 556.

            Finally, in his initial appeal, Harris contended that the

district court clearly erred in denying his request for a downward

sentencing adjustment for acceptance of responsibility, pursuant to

USSG § 3E1.1.      Harris also requested a remand to the district court

for a new sentencing hearing based on a violation of Brady v.

Maryland, 373 U.S. 83 (1963).

            A district court’s determination as to the defendant’s

acceptance of responsibility is a factual question reviewed for

clear error.      United States v. Ruhe, 191 F.3d 376, 388 (4th Cir.


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1999).      The    burden       is   on   the    defendant    to    establish      by    a

preponderance       of    the     evidence      that   he    is    entitled   to    the

adjustment.       United States v. Urrego-Linares, 879 F.2d 1234, 1238-

39 (4th Cir. 1989).            A guilty plea does not automatically entitle

a defendant to a reduction for acceptance of responsibility.                        See

USSG § 3E1.1, comment. (n.3).              A defendant may not be entitled to

a sentencing adjustment for acceptance of responsibility if the

defendant    engages      in     conduct   inconsistent       with    acceptance        of

responsibility.          Id.     Although Harris admitted that he sent a

threatening communication to his wife, two witnesses testified that

Harris made additional threats against his wife and others involved

in his case even after he pled guilty.                 Thus, the district court

did not clearly err in concluding that Harris’ conduct after he

pled guilty was inconsistent with acceptance of responsibility.

Further, we find no Brady violation.

            Accordingly, while we do not disturb Harris’ conviction,

we vacate Harris’ sentence and remand for resentencing consistent

with Booker and its progeny.                    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




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