                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4709



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ALAN ROSS SEALOCK, JR.,

                                            Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-02-344-MJG)


Submitted:   November 18, 2005         Decided:     December 29, 2005


Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


David R. Solomon, GLASER & SOLOMON, L.L.C., Baltimore, Maryland,
for Appellant. Allen F. Loucks, 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Unpublished opinions are not binding precedent in this circuit.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:

          Alan Ross Sealock, Jr., appeals his sentence of 115

months’ imprisonment after a plea of guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g) (2000).

Sealock’s only claim is that the district court erred in sentencing

him under a mandatory guidelines scheme in light of United States

v. Booker, 125 S. Ct. 738 (2005).   Sealock asserts his case should

be remanded for imposition of the district court’s alternative

sentence of seventy-nine months. The Government asks this court to

direct the district court to amend its judgment to impose the

seventy-nine month sentence.   For the reasons set forth below, we

affirm Sealock’s conviction, but vacate his sentence and remand for

resentencing.

          At sentencing, the district court imposed an alternative

sentence based on its understanding of Blakely v. Washington, 542

U.S. 296 (2004), and as suggested by United States v. Hammoud, 381

F.3d 316, 353-54 (4th Cir. 2004) (en banc), judgment vacated, 125

S. Ct. 1051 (2005). The district court interpreted Blakely to mean

that judicial fact finding regarding any sentencing factors (and

using a preponderance of the evidence standard rather than beyond

a reasonable doubt standard) was impermissible.      Based on this

understanding, and applying all of the adjustments and departures

associated with its prior guidelines calculation except for a four-




                               - 2 -
level firearms enhancement, the district court announced a lower

alternative sentence of seventy-nine months.

            In Booker, the Supreme Court concluded that even in the

absence    of    a    Sixth   Amendment      violation,   the    imposition   of   a

sentence under the mandatory guidelines regime was error.                   Booker,

125 S. Ct. at 769; see also United States v. White, 405 F.3d 208,

216-217 (4th Cir. 2005).            This court explained in United States v.

Hughes, 401 F.3d 540, 553 (4th Cir. 2005), that sentencing under a

mandatory regime is “a separate class of error . . . distinct from

the Sixth Amendment claim that gave rise to the decision in

Booker.”    The court recognized that “[t]his error . . . may be

asserted even by defendants whose sentences do not violate the

Sixth Amendment.”          Id.     Such is the case here.

            In       White,   we    held   that    treating   the   guidelines     as

mandatory was plain error in light of Booker.                   Id. at 216-17.     We

declined to presume prejudice, id. at 217-22, holding that the

“prejudice inquiry, therefore, is . . . whether after pondering all

that happened without stripping the erroneous action from the

whole, . . . the judgment was . . . substantially swayed by the

error.”     Id.       at   223   (internal    quotation   marks     and   citations

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.    Because “the


                                           - 3 -
record as whole provide[d] no nonspeculative basis for concluding

that the treatment of the guidelines as mandatory ‘affect[ed] the

district court’s selection of the sentence imposed,’” id. at 223

(quoting Williams v. United States, 503 U.S. 193, 203 (1992)), we

concluded in White that the error did not affect the defendant’s

substantial rights and affirmed the sentence.              Id. at 225.

            Here,   unlike   in   White,    the   district    court    gave   an

alternative sentence of seventy-nine months’ imprisonment. Because

the alternative sentence is substantially lower than the 115-month

sentence    imposed   by   the    court,    the   record    provides     a   non-

speculative basis for concluding the treatment of the guidelines as

mandatory affected the district court’s selection of the sentence

imposed.

            The parties ask that the judgment simply be amended to

impose the alternative seventy-nine month sentence.                However, the

district    court’s   alternative     sentence     relied     on    assumptions

inconsistent with the Supreme Court’s later decision in Booker, and

the district court noted that if the guidelines were a factor to be

considered in sentencing, as the Court essentially held in Booker,

he could not guess what his sentence would be.               Thus, we decline

the parties’ request that imposition of the alternative sentence be

directed.    Instead, in deference to the district court, we remand

for resentencing anew.       On remand, the district court should first

determine the appropriate sentencing range under the guidelines,


                                    - 4 -
making all factual findings appropriate for that determination.

See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)

(applying Booker on plain error review). The court should consider

this sentencing range along with the other factors described in 18

U.S.C. § 3553(a) (2000), and then impose a sentence.                 Id.    If that

sentence falls outside the guidelines range, the court should

explain its reasons for imposing a non-guidelines sentence, as

required by 18 U.S.C. § 3553(c)(2) (2000).             Id.      The sentence must

be “within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47.

            In   sum,   we    affirm   Sealock’s     conviction,         vacate   his

sentence, and remand for resentencing in accordance with Booker.*

We   dispense    with   oral    argument     because      the    facts   and   legal

contentions      of   the    parties   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




      *
      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 Sealock’s sentencing.

                                       - 5 -
