                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4929



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RAMON ACOSTA-GALLEGOS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (CR-04-40)


Submitted:   April 19, 2006                   Decided:   May 8, 2006


Before WILKINSON, WILLIAMS, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:

            Ramon Acosta-Gallegos appeals the seventy-month sentence

imposed after he pleaded guilty to one count of reentry after

deportation after having been convicted of a felony, in violation

of 8 U.S.C. § 1326(a), (b)(2) (2000).              In accordance with the

recommendation in United States v. Hammoud, 378 F.3d 426 (4th Cir.)

(order), opinion issued by 381 F.3d 316 (4th Cir. 2004) (en banc),

vacated, 543 U.S. 1097 (2005), the district court also announced an

alternate sentence pursuant to 18 U.S.C.A. § 3553(a) (West 2000 &

Supp. 2005), of six years of imprisonment.

            Acosta-Gallegos argues that his sentence must be vacated

and the case remanded for resentencing because the district court

treated the Sentencing Guidelines* as mandatory.                  He does not

assert any Sixth Amendment error in the determination of his

sentence.     Acosta-Gallegos objected to the Guideline calculations

at sentencing based on the Supreme Court’s decision in Blakely v.

Washington, 542 U.S. 296 (2004).      We therefore review the district

court’s    mandatory   application   of    the    Guidelines   to    determine

Acosta-Gallegos’ sentence for harmless error.             United States v.

Rodriguez, 433 F.3d 411, 416 (4th Cir. 2006).             In harmless error

review, the “defendant is entitled to relief if an error has

affected    his   substantial   rights,”    and    the   burden     is   on   the

Government to show that any error did not affect the defendant’s


     *
      U.S. Sentencing Guidelines Manual (2003).

                                  - 2 -
substantial rights.   Id.   We have recognized that the application

of the Guidelines as a mandatory determinant in sentencing is

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

cert. denied, 126 S. Ct. 668 (2005).

          The Government concedes that the district court erred in

sentencing   Acosta-Gallegos   pursuant   to   a   mandatory   Guidelines

scheme, but argues that the district court’s announcement of an

alternative sentence renders any error harmless. Specifically, the

Government asserts that the Guideline range was properly calculated

and would apply on remand, the sentence is within that range, and

in view of the lengthier alternate sentence, Acosta-Gallegos would

not obtain any relief on resentencing.

          Our review of the record leads us to agree with the

Government’s position.    Acosta-Gallegos’ sentence is at the bottom

of the Guideline range, and the district court announced a slightly

higher sentence when it considered the Guidelines as advisory only

in conjunction with the factors listed in 18 U.S.C.A. § 3553(a).

We conclude that the district court’s error in sentencing Acosta-

Gallegos pursuant to the then-mandatory Guidelines did not affect

his substantial rights.

          Accordingly, we affirm Acosta-Gallegos’ sentence.           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

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