                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                  No. 04-4682
RICHARD GUYON, a/k/a Michael A.
Banks,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                Terrence W. Boyle, District Judge.
                            (CR-03-126)

                       Argued: October 25, 2006

                      Decided: December 15, 2006

         Before WILKINS, Chief Judge, and NIEMEYER
                  and MOTZ, Circuit Judges.



Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Chief Judge Wilkins and Judge Niemeyer joined.


                             COUNSEL

ARGUED: John Keating Wiles, CHESHIRE, PARKER, SCHNEI-
DER, BRYAN & VITALE, Raleigh, North Carolina, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Frank D. Whitney, United States Attorney,
2                      UNITED STATES v. GUYON
Christine Witcover Dean, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


                             OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

   Pursuant to a written agreement, Richard Guyon pleaded guilty to
several fraud offenses and was sentenced in August 2004. The then-
mandatory Federal Sentencing Guidelines established a sentencing
range of 140 to 175 months and permitted the district court to deviate
from this range only if it found facts justifying a departure. In
response to the Government’s motion for an upward departure, Guyon
argued that an increase based on judicial findings of fact would vio-
late his Sixth Amendment rights. The district court rejected this argu-
ment, and, after finding that a sentence within the Guidelines range
would inadequately address the seriousness of Guyon’s criminal his-
tory and his strong likelihood of recidivism, sentenced Guyon to 180
months. Absent this judicial fact-finding, the court could not have
sentenced Guyon to more than 175 months. Guyon appeals, challeng-
ing his sentence. Because United States v. Booker, 543 U.S. 220
(2005), requires us to hold that the upward departure violated the
Sixth Amendment, we vacate and remand for resentencing.

                                  I.

   At a Kinko’s in Durham, North Carolina, Guyon introduced him-
self to the victim as Michael A. Banks and told her (falsely) that he
owned a computer consulting business that was relocating to the area.
Later, the two met for drinks and began dating. Guyon quickly con-
vinced the victim that he loved her — and gained access to her sub-
stantial financial assets. He stole savings bonds from her safety
deposit box, forged them, and cashed the forgeries. He forged checks
from her investment and checking accounts. He cloned or stole her
ATM card and withdrew funds. Through various devices of fraud and
theft, Guyon ultimately stole from her over $170,000.
                        UNITED STATES v. GUYON                           3
   The victim discovered the fraud and alerted the authorities. Pursu-
ant to a written plea agreement, Guyon pleaded guilty to one count
of unauthorized use of an access device with intent to defraud, 18
U.S.C. § 1029(a)(2) (2000) (count 1), one count of forging an obliga-
tion of the United States, 18 U.S.C. § 471 (2000) (count 2), one count
of uttering a forged obligation of the United States, 18 U.S.C. § 472
(2000) (count 3), and two counts of bank fraud, 18 U.S.C. § 1344
(2000) (counts 4 and 5). Under the terms of the plea agreement,
Guyon waived all rights to appeal his sentence, "reserving only the
right to appeal from an upward departure from the Guideline[s] range
that is established at sentencing."

   At the time of Guyon’s sentencing in August 2004, the Guidelines
were mandatory. Applying them, the pre-sentence report calculated a
sentencing range of 140 to 175 months. The Government moved for
an upward departure, arguing that the Guidelines range did not ade-
quately reflect the extent of Guyon’s criminal history, the similarity
between his past transgressions and his current offenses, and his like-
lihood of recidivism. See United States Sentencing Commission,
Guidelines Manual § 4A1.3 (Nov. 2000) (USSG). To support a depar-
ture, the Government offered substantial evidence that Guyon had
victimized many women with similar schemes, had previously
defrauded his parents, other family members, and friends, and had
stolen the identities of various acquaintances.

   The district court agreed that the evidence supported an upward
departure. It found the Guidelines range provided by the Sentencing
Commission’s computation inadequate "to address the recidivism
here and the breadth of the crimes." The district court departed
upward, see USSG § 4A1.3, raising Guyon’s offense level by three.
The court then sentenced Guyon to 180 months on counts 2, 3, 4, and
5, and 120 months on count 1, to run concurrently.

                                    II.

  Guyon principally challenges his sentence as a violation of his
Sixth Amendment right to trial by an impartial jury.1
  1
    Guyon also challenges two alleged errors in the district court’s calcu-
lation of his Guidelines range. In his plea agreement, however, Guyon
4                        UNITED STATES v. GUYON
   Booker reaffirmed that the Sixth Amendment requires that "[a]ny
fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt." 543 U.S. at 244.
Booker further held that, under the mandatory Federal Sentencing
Guidelines, the maximum sentence for Sixth Amendment purposes
was the Guidelines maximum, not the statutory one. See id. at 232-34.
Consequently, the Booker Court held unconstitutional the common
practice under the mandatory Guidelines of using judicially found
facts to increase a defendant’s sentence beyond that possible on the
basis of facts found by a jury or admitted by the defendant himself.2
Id.

   The district court sentenced Guyon prior to Booker, when, under
this Court’s precedent, see United States v. Hammoud, 381 F.3d 316,
353 (4th Cir.) (en banc), vacated 543 U.S. 1097 (2005), the Guide-
lines were mandatory. Based on the facts established by Guyon’s
plea, the maximum sentence was the top of the Guidelines range —
175 months. The district court, however, sentenced Guyon to 180
months after finding additional facts not admitted by Guyon: the like-
lihood that Guyon would return to crime, the character of his criminal
history, and the inadequacy of a 175-month sentence. Seemingly,
under Booker, increasing Guyon’s sentence above the applicable
Guidelines range on the basis of these judicially found facts violated
the Sixth Amendment.

knowingly and intelligently waived the right to appeal all sentencing
issues, except those related to an upward departure. Consequently, we
will not consider these two additional challenges. See United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005).
   2
     Booker remedied the constitutional problem it identified by "sever-
[ing] and excis[ing]" the "provision of the federal sentencing statute that
makes the Guidelines mandatory," along with another provision that "de-
pend[ed] upon the Guidelines’ mandatory nature." 543 U.S. at 245 (sev-
ering and excising 18 U.S.C.A. § 3553(b)(1) (Supp. 2004) and 18
U.S.C.A. § 3742(e) (main ed. and Supp. 2004)). Booker directed courts
to apply "both the Sixth Amendment holding and [the] remedial interpre-
tation of the Sentencing Act . . . to all cases on direct review." Id. at 268.
                       UNITED STATES v. GUYON                          5
   Nevertheless, the Government argues that the sentence did not vio-
late Booker because the facts found by the district court fall within the
"prior conviction exception." See Apprendi v. New Jersey, 530 U.S.
466, 487-90 (2000) (discussing Alamendarez-Torres v. United States,
523 U.S. 224, 230 (1998)). Under that exception, the fact of a prior
conviction can serve as the basis for a sentence higher than could oth-
erwise be imposed, even without a jury having found that fact.
Apprendi, 530 U.S. at 490. The prior conviction exception, however,
does not encompass § 4A1.3 departure determinations. As the Ninth
Circuit explained in United States v. Kortgaard, 425 F.3d 602, 608-09
(9th Cir. 2005), § 4A1.3 determinations are "fundamentally factual in
nature . . . . [They] do not follow necessarily from the fact of any
prior conviction or sentence but instead call for the judgment of a
factfinder." We agree.

   For example, in this case the controlling question was not whether
Guyon had previously been convicted of a crime, but whether the
Guidelines sentence "significantly under-represent[ed] the seriousness
of the defendant’s criminal history or the likelihood that the defendant
will commit further crimes." USSG § 4A1.3 (2000). Indeed, a court
could evaluate two defendants with identical past convictions and find
that a sentence sufficient for one was inadequate for the other,
because the evidence demonstrated that the latter’s acts were more
serious or that he was more likely to commit future crimes. Because
a § 4A1.3 upward departure does not turn on the mere "fact of a prior
conviction" — as evidenced by the district court’s review of evidence
about the full scope of Guyon’s behavior — the exception does not
apply. Consequently, the upward departure in Guyon’s case violated
the Sixth Amendment.

   Because Guyon preserved his Sixth Amendment claim below, we
must determine whether this error was harmless, that is, whether it
affected Guyon’s substantial rights. United States v. Robinson, 460
F.3d 550, 558 (4th Cir. 2006). "[A] Sixth Amendment error affects a
defendant’s substantial rights unless the Government can ‘prove
beyond a reasonable doubt’ that the error was harmless — that is, that
‘the court would have imposed the same sentence in the absence of
the constitutional error.’" Id. (quoting United States v. Shatley, 448
F.3d 264, 267 (4th Cir.), cert. denied, ___ U.S. ___, 127 S. Ct. 310
(2006)).
6                       UNITED STATES v. GUYON
   The Government argues that the error here was harmless because,
after determining that the Guidelines authorized an upward sentencing
departure, the district court had the discretion to determine the degree
of that departure, or even forgo it entirely. But the district court’s dis-
cretion does not cure its error in exceeding the Guidelines maximum.
Under the mandatory Guidelines, the court could not have sentenced
Guyon above 175 months without making the forbidden factual find-
ing. Thus, but for the error, Guyon would have received a shorter sen-
tence. Consequently, the error affected Guyon’s substantial rights and
was not harmless. Of course, on remand, under the newly advisory
Guidelines, the district court can, if reasonable, impose a sentence
greater than 175 months.

                                   III.

  For the reasons discussed above, we vacate Guyon’s sentence and
remand for re-sentencing under Booker.

                                          VACATED AND REMANDED
