                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5124



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RICKY EUGENE EVERHART, a/k/a Red,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-34)


Submitted:   December 28, 2005            Decided:   February 7, 2006


Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Keith Cave, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Ricky   Eugene   Everhart   was   convicted   by   a   jury   of

conspiracy to possess with intent to distribute a quantity of

cocaine base, in violation of 21 U.S.C. §§ 841, 846 (2000), and two

counts of possession with intent to distribute cocaine base, in

violation of 21 U.S.C. § 841.           The district court sentenced

Everhart to 360 months of imprisonment, noting an alternative

sentence of 180 months under United States v. Hammoud, 381 F.3d 316

(4th Cir. 2004) (en banc), vacated by 125 S. Ct. 1051 (2005).           On

appeal, Everhart argues that (1) the district court abused its

discretion in admitting into evidence duplicate compact disc (“CD”)

recordings of microcassette audio recordings pursuant to Fed. R.

Evid. 1003; (2) the district court erred in denying his motion for

judgment of acquittal based on sufficiency of the evidence; and (3)

his sentence violates United States v. Booker, 125 S. Ct. 738

(2005), and he is therefore entitled to resentencing.            For the

reasons that follow, we affirm Everhart’s convictions, vacate his

sentence, and remand for resentencing.

          Everhart first argues on appeal that the court abused its

discretion in admitting into evidence duplicate CD recordings under

Federal Rule of Evidence 1003.        The standard of review for the

admission of a tape recording is abuse of discretion.        See United

States v. Capers, 61 F.3d 1100, 1106 (4th Cir. 1995).        This court

will not find error “unless the foundation for admission is clearly


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insufficient to insure the accuracy of the recording.” Id. (citing

United States v. Clark, 986 F.2d 65, 69 (4th Cir. 1993)).           It is a

jury question whether the evidence admitted is what its proponents

claim it to be.      Id. (citing United States v. Branch, 970 F.2d

1368, 1372 (4th Cir. 1992)).      “The proponent of an audio recording

must show that the recording was sufficiently authentic to be

admitted into evidence.”     United States v. Wilson, 115 F.3d 1185,

1188-89 (4th Cir. 1997).     “The district court has wide latitude in

determining whether or not the proponent of a tape recording has

adequately laid the foundation from which a jury could reasonably

evaluate the accuracy, the validity, and the credibility of the

contents of the recording.”       Id. at 1189.      Because the Government

established a sufficient foundation for the duplicate recordings,

and Everhart did not raise a “genuine question” to the authenticity

of the original, we find that the district court did not abuse its

discretion in admitting the duplicate recordings.

             Next, Everhart argues that the district court erred in

denying his motion for judgment of acquittal.              Specifically, he

argues on appeal that the evidence was insufficient to sustain his

convictions.    This court reviews the district court’s decision to

deny a motion for judgment of acquittal de novo.           United States v.

Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).             If the motion was

based   on   insufficiency   of   the   evidence,   the   verdict   must   be

sustained if there is substantial evidence, taking the view most


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favorable to the Government, to support it.                    Glasser v. United

States,   315     U.S.   60,   80   (1942).      “[S]ubstantial        evidence    is

evidence that a reasonable finder of fact could accept as adequate

and sufficient to support a conclusion of a defendant’s guilt

beyond a reasonable doubt.”           United States v. Burgos, 94 F.3d 849,

862 (4th Cir. 1996) (en banc).              In evaluating the sufficiency of

the evidence, this court does not review the credibility of the

witnesses.      United States v. Romer, 148 F.3d 359, 364 (4th Cir.

1998).     We     find    sufficient        evidence    to   support    Everhart’s

convictions and therefore no error in the district court’s denial

of the motion.

           Last, Everhart contends that his sentence violates Booker

and asks that his case be remanded for resentencing.                       Because

Everhart objected below based on Blakely v. Washington, 542 U.S.

296 (2004), this claim is reviewed under a harmless error analysis.

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

Government bears the burden in harmless error review of showing

beyond a reasonable doubt that the error did not affect the

defendant’s substantial rights. Id. at 405. Affecting substantial

rights    means    that    the      error    affected    the    outcome    of     the

proceedings.      United States v. Stokes, 261 F.3d 496, 499 (4th Cir.

2001).

           In Booker, the Supreme Court held that Blakely applied to

the federal sentencing guidelines and that the mandatory manner in


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which the federal sentencing guidelines required courts to impose

sentencing enhancements based on facts found by the court by a

preponderance of the evidence violated the Sixth Amendment. 125 S.

Ct. at 746, 750.          Here, the district court erred because the drug

quantity calculations and enhancements were imposed under the

mandatory guidelines scheme.               United States v. Hughes, 401 F.3d

540,       547   (4th    Cir.    2005).         The    error   affected    Everhart’s

substantial rights because the sentence imposed was longer than the

term of imprisonment that the district court could have imposed

based solely on the jury’s findings.                  See id. at 548.     Accordingly,

Everhart’s sentence must be vacated and remanded for resentencing.

                 The district court, in this post-Hammoud sentencing,

imposed a lower alternative sentence in light of Everhart’s Blakely

objection        and    pursuant   to     the   recommendation     that     the   court

announce an alternate sentence treating the guidelines as advisory

only.       Thus, the district court erred when it imposed Everhart’s

sentence under a mandatory guidelines scheme, and the evidence is

clear and non-speculative that such error affected the outcome of

Everhart’s proceedings.*

                 The Government agrees that there was error but argues

that       resentencing     is     unnecessary        in   light   of   the   court’s

alternative sentence.            While Hughes did not involve an alternative


       *
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Everhart’s sentencing.

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sentence, the existence of the alternative sentence does not

undermine the finding of error.          Post-Booker, a court is required

to consider the guideline range in conjunction with other relevant

factors under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and

impose sentence.     Hughes, 401 F.3d at 546.       Here, when imposing the

alternative sentence, the district court provided no discussion or

reasoning and did not state that it had considered the 18 U.S.C.A.

§ 3553(a) factors.      Thus, it is unclear on what basis the district

court calculated its alternative sentence and whether the court

would impose a different sentence following the Hughes procedure.

See United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) (ordering

remand for consideration of § 3553 factors, even in light of

identical, alternative sentence).          Therefore, the Government has

failed to show beyond a reasonable doubt that the Booker error did

not affect the length of Everhart’s sentence.

           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.A. § 3553(a), and then impose a sentence.


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Id. If that sentence falls outside the guidelines range, the court

should explain its reasons for imposing a non-guidelines sentence,

as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005).

Id.    The sentence must be “within the statutorily prescribed range

and . . . reasonable.”       Id.

            Based on the foregoing, we affirm Everhart’s convictions,

vacate his 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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