                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4953



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JAMES EDWARD BYRD, III,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-01-178)


Submitted:   July 29, 2005            Decided:   September 15, 2005


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


Affirmed in part, vacated in part, and remanded by unpublished per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


Randolph M. Lee, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           James   Edward   Byrd,    III,   appeals   his   conviction   and

360-month sentence imposed after the jury found him guilty of

conspiracy to distribute and possess with intent to distribute more

than fifty grams of crack cocaine, in violation of 21 U.S.C. § 846

(2000).   He contends that the evidence was insufficient to convict

him and, citing Blakely v. Washington, 542 U.S. 296 (2004), and

United States v. Booker, 125 S. Ct. 738 (2005), asserts that his

sentence is unconstitutional.       We affirm Byrd’s conviction, vacate

Byrd’s sentence, and remand for resentencing.

           Byrd contends that the evidence did not establish that he

entered into an agreement to distribute crack cocaine with Terry

Lamont Huntley, a charged co-conspirator.         We review de novo the

district court’s denial of a motion for judgment of acquittal filed

pursuant to Fed. R. Crim. P. 29.       United States v. Lentz, 383 F.3d

191, 199 (4th Cir. 2004), cert. denied, 125 S. Ct. 1828 (2005).

Where, as here, the motion was based on insufficient evidence,

“[t]he verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.”   Glasser v. United States, 315 U.S. 60, 80 (1942).          We

have reviewed the trial testimony in the joint appendix and are

convinced that the evidence was sufficient to convict Byrd.              See

United States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001)

(discussing elements of offense); United States v. Mills, 995 F.2d


                                    - 2 -
480,       485    n.1   (4th    Cir.   1993)     (“[E]vidence     of    a   buy-sell

transaction, when coupled with a substantial quantity of drugs,

would      support      a   reasonable   inference    that   the       parties   were

coconspirators.”).

                 Byrd also asserts that his sentence is unconstitutional

in light of Blakely and Booker.            Because Byrd preserved this issue

by objecting to the presentence report based upon Blakely, our

review is de novo.          See United States v. Mackins, 315 F.3d 399, 405

(4th Cir. 2003) (“If a defendant has made a timely and sufficient

Apprendi[1]        sentencing    objection     in   the   trial    court,    and   so

preserved his objection, we review de novo.”).                    When a defendant

preserves a Sixth Amendment error, we “must reverse unless we find

this constitutional error harmless beyond a reasonable doubt, with

the Government bearing the burden of proving harmlessness.”                        Id.

(citations omitted); see United States v. White, 405 F.3d 208, 223

(4th Cir. 2005) (discussing difference in burden of proving that

error affected substantial rights under harmless error standard in

Fed. R. App. P. 52(a), and plain error standard in Fed. R. App. P.

52(b)).

                 In Booker, the Supreme Court held that the mandatory

manner in 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.


       1
        Apprendi v. New Jersey, 530 U.S. 466 (2000).

                                         - 3 -
125 S. Ct. at 746, 750 (Stevens, J., opinion of the Court).                      The

Court    remedied   the    constitutional        violation        by   making    the

guidelines advisory through the removal of two statutory provisions

that had rendered them mandatory. Id. at 746 (Stevens, J., opinion

of the Court); id. at 756-67 (Breyer, J., opinion of the Court).

            Here,   the   district       court   sentenced    Byrd       under   the

mandatory federal sentencing guidelines and enhanced his sentence

based    upon   facts   found   by   a    preponderance      of    the   evidence.

Specifically, the court established a base offense level of thirty-

six based on a finding that Byrd was responsible for 874 grams of

crack cocaine.      See U.S. Sentencing Guidelines Manual (“USSG”)

§ 2D1.1(c)(2) (2003).       The court also increased the base offense

level by two levels under USSG § 3A1.2(a).            Under Booker, we find

that the 360-month sentence Byrd received violates the Sixth

Amendment.      We also conclude that the error is not harmless in

light of the alternate sentence announced by the district court

before Booker was decided.2

            Accordingly, we affirm Byrd’s conviction, vacate Byrd’s

sentence, and remand for resentencing.3              We dispense with oral


     2
      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 Byrd’s sentencing.
     3
      Although the guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the]
[g]uidelines and take them into account when sentencing.” 125 S.
Ct. at 767 (Breyer, J., opinion of the Court).      On remand, the

                                     - 4 -
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




district court should first determine the appropriate sentencing
range under the guidelines, making all factual findings appropriate
for that determination. 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) (West 2000 & Supp. 2005), and
then impose a sentence. Hughes, 401 F.3d at 546. If that sentence
falls outside the guidelines range, the court should explain its
reasons for the departure as required by 18 U.S.C.A. § 3553(c)(2)
(West 2000 & Supp. 2005). Hughes, 401 F.3d at 546. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.

                              - 5 -
