                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4931



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


CHRISTOPHER WAYNE TURNER,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (CR-04-86)


Submitted:   May 24, 2006                  Decided:   June 23, 2006


Before MOTZ, TRAXLER, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Robert H. Hale, Jr., Raleigh, North Carolina, for Appellant. Frank
D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Christopher Wayne Turner appeals his seventy-month prison

sentence resulting from his plea of guilty to distribution of more

than five grams of cocaine base in violation of 21 U.S.C. § 841

(2000), but does not appeal from his conviction.            We vacate his

sentence and remand for resentencing in light of United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

           Turner claims the district court erred by applying the

Sentencing Guidelines as mandatory.         In Booker, the Supreme Court

concluded that even in the absence of a Sixth Amendment violation,

the imposition of a sentence under the mandatory guidelines regime

was error.      Booker, 125 S. Ct. at 769; see also United States v.

White, 405 F.3d 208, 216-17 (4th Cir. 2005).         This court explained

in United States v. Hughes, 401 F.3d 540 (4th Cir. 2005), that

sentencing under a mandatory regime is “a separate class of error

. . . distinct from the Sixth Amendment claim that gave rise to the

decision   in    Booker.”   Hughes,   401    F.3d   at   553.   The   court

recognized that “[t]his error . . . may be asserted even by

defendants whose sentences do not violate the Sixth Amendment.”

Id.   Such is the case here.1


      1
      While the district court sentenced Turner using a higher drug
quantity than he admitted, no Sixth Amendment error occurred
because the sentence imposed was less than the maximum sentence
that would have been authorized under the Guidelines by the drug
quantity Turner admitted, absent the downward adjustment Turner
received for acceptance of responsibility. See United States v.
Evans, 416 F.3d 298, 300 (4th Cir. 2005).

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            As Turner raised a timely objection under 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 (4th Cir. 2006).        Thus, we review his 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.    The Government concedes that it cannot show the error was

harmless and cannot satisfy its burden of showing the error did not

affect Turner’s substantial rights.                There is no indication from

the record how the district court would sentence Turner under the

current advisory guidelines system.                   Therefore, Turner must be

resentenced.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 the 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.    §    3553(a)   (2000),     and    then    impose   a

sentence.     Id.       If that sentence falls outside the Guidelines


     2
      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 Turner’s sentencing.

                                         - 3 -
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.

          Accordingly, we vacate Turner’s sentence and remand for

resentencing in light of Booker.   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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