                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 04-4543



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

           versus


JOHN ERVIN WILDER, JR.,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-35)


Argued:   September 22, 2005                 Decided:   October 19, 2005


Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Robert J. CONRAD, Jr., United States District Judge for the Western
District of North Carolina, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: George Bullock Currin, 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,
Christine Witcover Dean, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     John Ervin Wilder, Jr. appeals from the concurrent sixty month

sentence imposed by the district court following his pleas of

guilty to possession with intent to distribute 500 grams or more of

cocaine, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and possession with

intent to distribute marijuana.   Id.   §§ 841(a)(1) and (b)(1)(D).

For the reasons stated below, we vacate Wilder’s sentence and

remand for resentencing.



                                  I

     On November 5, 2003, a confidential informant notified the

Nash County, North Carolina Sheriff’s Office of an impending drug

transaction involving Luther Breland and Wilder.    As a result of

this information, the sheriff’s office set up surveillance on

Breland. On November 6, 2003, Breland, while under surveillance by

the sheriff’s office, traveled to Wilder’s residence in Spring

Hope, North Carolina and purchased one ounce of cocaine from

Wilder. Following the transaction, Breland was arrested. A search

warrant was obtained and executed at Wilder’s residence.   Pursuant

to the search of Wilder’s residence, law enforcement agents seized,

inter alia, 572 grams of cocaine, thirty pounds of marijuana, and

several unloaded firearms in a gun cabinet.

     A federal grand jury indicted Wilder on two counts. Count One

charged Wilder with possession with intent to distribute 500 grams


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or more of cocaine.       Id. §§ 841(a)(1) and (b)(1)(B).           Count Two

charged him with possession with intent to distribute marijuana.

Id. §§ 841(a)(1) and (b)(1)(D).           Pursuant to a plea agreement,

Wilder agreed to plead guilty to both counts.

      The Presentence Investigation Report (PSR) recommended a base

offense level of twenty-six, United States Sentencing Commission,

Guidelines Manual, (USSG) § 2D1.1(c)(7).               Two levels were added

because a dangerous weapon was possessed, USSG § 2D1.1(b)(1).                The

PSR   recommended    a   three   level    reduction      for    acceptance   of

responsibility, USSG § 3E1.1(b), resulting in an offense level of

twenty-five.    Coupled with a criminal history category of one,

Wilder’s Guidelines range for Count One was sixty to seventy-one

months.    His Guidelines range for Count Two was fifty-seven to

sixty months.       The ranges differed between Counts One and Two

because sixty months was the minimum sentence authorized by statute

for Count One (under 21 U.S.C. § 841(b)(1)(B), five-year minimum

sentence if offense involves more than 500 grams of cocaine) and

sixty months was the maximum sentence authorized by statute for

Count Two (under 21 U.S.C. § 841(b)(1)(D), five-year maximum

sentence   if   offense    involves      less   than    fifty    kilograms   of

marijuana).

      Wilder made several objections to the PSR. First, he objected

to the two-level enhancement for firearm possession, arguing both

that there was no factual support for the enhancement and that the


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enhancement was unconstitutional pursuant to Blakely v. Washington,

124 S. Ct. 2531 (2004).      He also argued that he qualified for the

application of the “safety valve” provision contained in USSG

§ 5C1.2.1

     On July 6, 2004, Wilder was sentenced.            At the beginning of

the sentencing hearing, the district court announced it would not

consider the Sentencing Guidelines as binding, but instead would

impose a sentence “as authorized by statute.”2         The court explained

it nevertheless would take into account the information contained

in the PSR and the factors identified in the Sentencing Guidelines.

     During the sentencing hearing, Wilder argued that the firearm

enhancement   should   not   apply   and   that   he   qualified   for   the

application of the safety valve provision.             The district court

declined to make a factual finding concerning whether Wilder



     1
      “The safety valve permits shorter sentences for a first-time
offender who would otherwise face a mandatory minimum, provided
that he meets five statutory requirements.”       United States v.
Fletcher, 74 F.3d 49, 56 (4th Cir. 1996). For USSG § 5C1.2 to
apply,(1) the defendant cannot have more than one criminal history
point; (2) the defendant cannot have used violence or threats of
violence or possess a firearm or other dangerous weapon in
connection with the offense; (3) the offense cannot have resulted
in death or serious bodily injury; (4) the defendant cannot have
been an organizer, leader, manager, or supervisor in regard to the
offense; and (5) no “later than the time of the sentencing hearing,
the defendant [must have] truthfully provided to the Government all
information and evidence the defendant has concerning the offense.”
USSG § 5C1.2.
     2
      The sentencing hearing took place after the Supreme Court had
issued its decision in Blakely, but before the Court had issued its
decision in United States v. Booker, 125 S. Ct. 738 (2005).

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possessed the firearms in connection with the drug offenses.                 The

court also declined to address the question of whether Wilder was

entitled    to   the    application    of     the   safety   valve   provision.

Instead, the court stated it was “not relying on the guidelines in

any way, shape or form.”         The district court sentenced Wilder to

concurrent sixty-month terms of imprisonment. In the judgment, the

court stated that the Guidelines were unconstitutional and the

court was sentencing Wilder under its “statutory authority.”                 The

court added that, in imposing the sentence, it considered the PSR

and Wilder’s objections to the PSR.



                                       II

     On    appeal,     Wilder   contends    that    the   district   court   was

required to determine whether he was eligible for the benefit of

the safety valve provision in determining his sentence.               We agree.

     We begin by noting that, in sentencing Wilder, the district

court did not have the benefit of either Booker or our decision in

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

the Supreme Court held that its decision in Blakely applied to the

Sentencing Guidelines and that the mandatory Guidelines scheme

providing for sentence enhancements based on facts found by the

sentencing court violated the Sixth Amendment.               Booker, 125 S. Ct.

at 755-56 (Stevens, J., opinion of the Court).               The Court remedied

the constitutional violation by severing and excising the statutory


                                      - 5 -
provisions that mandate sentencing and appellate review under the

Guidelines, thus making the Guidelines advisory.            Id. at 756-57

(Breyer, J., opinion of the Court).      Subsequently, in Hughes, we

held that a sentence that is enhanced based on facts found by the

court, not by a jury (or, in a guilty plea case, facts not admitted

by the defendant), violates the Sixth Amendment and constitutes

plain error that affects the defendant’s substantial rights and

warrants reversal under Booker when the record does not disclose

what discretionary sentence the district court would have imposed

under an advisory Guidelines scheme.     Hughes, 401 F.3d at 545-56.

     In the wake of Booker, the Guidelines no longer are mandatory.

However, Booker makes clear that a sentencing court must still

“consult   [the]   Guidelines   and   take   them    into   account   when

sentencing.”    125 S. Ct. at 767 (Breyer, J., opinion of the Court).

Thus, in imposing a sentence, the 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. § 3553(a)

and then impose a sentence.      Hughes, 401 F.3d at 546.         If that

sentence falls outside the Guidelines range, the court should

explain its reason for the departure as required by 18 U.S.C.

§ 3553(c)(2).      Hughes, 401 F.3d at 546.         The sentence must be




                                 - 6 -
“within the statutorily prescribed range and . . . reasonable.”

Id. at 547.

     In this case, the district court declined to make findings of

fact necessary to the determination of a range pursuant to the

Sentencing Guidelines.     Specifically, the court declined to rule

either on Wilder’s objection to the firearm enhancement or on his

claim of entitlement to the benefit of the safety valve provision.

It necessarily follows that the court neither calculated a range

pursuant to the Guidelines nor considered that range.          Thus, the

court’s sentencing approach runs afoul of Hughes because that case

requires    the   sentencing   court   to   calculate   the   defendant’s

sentencing range under the Sentencing Guidelines.

     The only remaining question is whether the error here is

harmless.     Under Rule 52(a) of the Federal Rules of Criminal

Procedure, an appellate court may disregard any error that does not

affect substantial rights.       The government bears the burden in

harmless error review of showing beyond a reasonable doubt that the

error did not affect the defendant’s substantial rights.          United

States v. Stokes, 261 F.3d 496, 499 (4th Cir. 2001).          Substantial

rights are affected when the error alters the outcome of the

proceeding.   Id.   An error in sentencing may be disregarded if the

reviewing court is certain that any such error “did not affect the

district court’s selection of the sentence imposed.”          Williams v.

United States, 503 U.S. 193, 203 (1992).


                                  - 7 -
     In this case, we are of the opinion that the error is not

harmless.   The district court never addressed the applicability of

the safety valve provision and we can only speculate as to the

sentence the court would have imposed had it concluded that the

safety valve provision was applicable.   Because the application of

the safety valve provision under both a Guidelines (USSG § 5C1.2)

and statutory approach (18 U.S.C. § 3553(f)) would have permitted

a sentence well below the sixty month concurrent sentence the

district court ultimately imposed, we cannot say that the court’s

failure to consider the safety valve provision did not affect its

ultimate determination of the proper sentence.



                                III

     For the reasons stated herein, we vacate Wilder’s sentence and

remand the case for resentencing.      On remand, the court should

follow the sentencing approach outlined in our decision in Hughes.3

                                              VACATED AND REMANDED




     3
      We express no opinion on whether Wilder is, in fact, entitled
to the benefit of the safety valve provision.

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