                             ON REHEARING

                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4043



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


WILLIAM GLENN CASTEVENS,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (CR-04-268)


Submitted:   March 8, 2006              Decided:    December 13, 2006


Before LUTTIG,* WILLIAMS, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.



     *
      Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           William Glenn Castevens pled guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(2000).    He was sentenced to forty months in prison.              Castevens

appealed his sentence, and we affirmed by unpublished per curiam

opinion.    We now grant Castevens’ petition for rehearing and,

dispensing with briefing and oral argument, modify our prior

opinion in light of United States v. Rodriguez, 433 F.3d 411 (4th

Cir.   2006),   so   as    to   vacate     the   sentence   and   remand   for

resentencing.

           Castevens      asserts   that   his   sentence   violates   United

States v. Booker, 543 U.S. 220 (2005), because the district court

sentenced him under a mandatory sentencing guidelines scheme.

After Booker, we held that treating the guidelines as mandatory was

plain error. United States v. White, 405 F.3d 208, 215-17 (4th

Cir.), cert. denied, 126 S. Ct. 668 (2005).          We declined to presume

prejudice, id. at 217-22, and held 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 citation omitted).            In Rodriguez, we

held that a defendant who makes an objection at sentencing based on

Blakely v. Washington, 542 U.S. 296 (2004), has preserved his claim

of statutory error (mandatory application of the guidelines) under


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Booker.   Rodriguez, 433 F.3d at 415.       The appeals court is obliged

to review the claim for harmless error, and the burden is on the

government to show that the Booker error did not affect the

defendant’s substantial rights.         Id. at 416.

           In this case, the district court announced an alternative

“Blakely guideline range” of 21-27 months and stated that it would

impose a sentence of twenty-four months if that range applied. See

White, 405 F.3d at 224.        Given this alternative sentence, the

government cannot show that the error in treating the guidelines as

mandatory did not affect Castevens’ substantial rights. See id. at

223 (noting that substantial rights inquiry is the same under plain

or harmless error and that only difference is which party bears

burden of proof).     We conclude that the government has not proven

that Castevens’ substantial rights were not violated.

           Accordingly, we vacate Castevens’ sentence and remand for

resentencing.    We    leave   intact    our   previous   conclusion   that

Castevens’ placement in criminal history category IV did not

violate the Sixth Amendment under Booker.



                                                      VACATED AND REMANDED




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