                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-4601



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


JERMAINE WALLACE,

                                                Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
03-243-JFM)


Submitted:   March 15, 2006                 Decided:   November 2, 2006


Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


David B. Irwin, IRWIN GREEN & DEXTER, L.L.P., Towson, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Angela R.
White, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Jermaine Wallace pled guilty, pursuant to a written plea

agreement, to conspiracy to distribute and possess with the intent

to distribute cocaine base and cocaine hydrochloride, in violation

of 21 U.S.C. §§ 841, 846(b)(1)(A)(ii), (b)(1)(A)(iii) (2000).

After determining that the criminal history category assigned by

the probation officer to Wallace over-represented the seriousness

of Wallace’s past crimes, the district court departed downward from

the applicable federal sentencing guideline range pursuant to U.S.

Sentencing Guidelines Manual § 4A1.3(b) (2003), and sentenced

Wallace to 188 months’ imprisonment, at the bottom of the newly-

calculated range.   Citing United States v. Booker, 543 U.S. 220

(2005), Wallace asserts on appeal that the district court erred in

sentencing him under the mandatory guidelines regime that was in

place at the time of his sentencing, and has filed a motion to

remand his case for resentencing.   Wallace does not challenge his

conviction.

          Wallace’s claim on appeal lies in the fact that he was

sentenced under a mandatory guidelines regime in violation of

Booker,1 which claim we review for plain error, as Wallace did not

object in the district court to his sentence on the basis of the

mandatory application of the guidelines.   United States v. White,



     1
      He concedes that his sentence was not enhanced by the
district court in contravention of his Sixth Amendment rights.

                              - 2 -
405 F.3d 208, 223 (4th Cir.), cert. denied, 126 S. Ct. 669 (2005).

Because the district court in this case applied the guidelines in

a mandatory fashion when it sentenced Wallace, it committed legal

error.   Id. at 216-17 & n.7.       However, prejudice is not presumed,

and the burden is on Wallace to demonstrate that the error affected

his substantial rights. United States v. Olano, 507 U.S. 725, 731-

32 (1993); United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.

2005).     In determining whether the error affected the outcome of

the district court proceedings, the court must consider, “[W]hether

‘after pondering all that happened without stripping the erroneous

action from the whole, . . . the judgment was . . . substantially

swayed by the error.’”           White, 405 F.3d at 223 (citations and

footnotes    omitted).      To   make   this    showing,    a   defendant   must

“demonstrate, based on the record, that the treatment of the

guidelines as mandatory caused the district court to impose a

longer sentence than it otherwise would have imposed.” Id. at 224.

            In this case, Wallace has indeed asserted that the

district    court   would   have    sentenced    him   differently    had    the

district court been able to sentence him under an advisory, rather

then mandatory, guidelines scheme, citing to various statements

made by the district court at sentencing.                  Specifically, with

regard to the application of criminal history points on Wallace’s

simple drug possession charge when he was seventeen years old, the

district court commented as follows:


                                     - 3 -
     This isn’t a place to engage in psychology or sociology.
     But if that is all true, it certainly is pretty rough to
     be having the kind of consequences under the guidelines
     upon the sentences here from offenses committed when
     people are 17 years old. It really is. It really is
     just rather draconian.

In   addition,   recognizing       the    then-mandatory     nature    of    the

guidelines and their constraints on its discretion, the district

court later stated, “the guidelines are the guidelines.” Following

its determination that a criminal history category of III over-

represented the seriousness of Wallace’s criminal history, and

departure downward to a criminal history category of II,2 the

district court commented, “I’m not going down as far as, though,

frankly, I would like to, . . . to a criminal history category one

because   I   think   it   would   be    unprincipled,   I   think    that   the

background here, it is what it is.            It might be lighter within

Baltimore City but that’s not the issue.         And I think, as I say, it

would be unprincipled.       Even though my heart would like to take

that argument, I don’t think I can do it.”          While it would appear

that while the district court may not have dropped Wallace’s

sentence as far as a criminal history category I, it may have

sentenced Wallace to a somewhat lower sentence than the bottom of

the guideline range applicable to a criminal history category II,

had it possessed the discretion at the time to do so.3                Given the


     2
      With an attendant guideline range of 188 to 235 months.
     3
      We of course offer no criticism of the district judge, who
followed the law and procedure in effect at the time of [Wallace’s]

                                    - 4 -
district court’s stated discomfort with and multiple referrals to

the mandatory nature of the guidelines, we find it prudent to

remand this case to the district court for reconsideration of

Wallace’s sentence pursuant to an advisory sentencing scheme.4

          Accordingly, while we affirm Wallace’s conviction, we

grant his motion to remand, vacate his 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.



                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




sentencing.” Hughes, 401 F.3d at 545 n.4.
     4
      Post-Booker, courts must calculate the appropriate guideline
range, consider the range in conjunction with other relevant
factors under the guidelines and 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2005), and impose a sentence.       If a court imposes a
sentence outside the guideline range, it must state its reasons for
doing so. Hughes, 401 F.3d at 546.


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