                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4056



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


PRINCE ANDRE PRICE,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-97)


Submitted:   June 17, 2005                 Decided:   November 1, 2005


Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Donald L. Stennett, BREWSTER, MORHOUS, CAMERON, CARUTH, MOORE,
KERSEY & STAFFORD, P.L.L.C., Charleston, West Virginia, for
Appellant.   Charles T. Miller, Acting United States Attorney,
Steven I. Loew, 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Unpublished opinions are not binding precedent in this circuit.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:

          Prince Andre Price appeals his seventy-two month sentence

resulting from his conviction for being a felon in possession of a

firearm, 18 U.S.C. § 922(g) (2000).   We affirm Price’s conviction,

but vacate and remand for resentencing.

          Price pled guilty and does not challenge his conviction.

Price claims the district court erred in failing to treat the

sentencing guidelines as advisory when imposing his sentence.   As

Price properly raised this issue in the district court by objecting

to his sentence based on United States v. Booker, 125 S. Ct. 738

(2005), we review for harmless error.     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.   United States v. Mackins, 315 F.3d 399, 405 (4th Cir.

2003).    The Government did not meet this burden because the

district court gave no indication what the sentence would have been

had the district court not been bound by the guidelines.   We would

have to speculate that the district court’s error in thinking

itself bound by the guidelines did not affect the sentence.     In

light of Booker, we vacate Price’s sentence and remand the case for

resentencing.*



     *
      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 Price’s sentencing.

                              - 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,      making   all    factual   findings   appropriate       for   that

determination. See United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005) (applying Booker on plain error review).                    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 range and . . . reasonable.”

Id. at 546-47.

            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




                                      - 3 -
