                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5063



UNITED STATES OF AMERICA,

                                                Plaintiff -   Appellee,

          versus


CARL L. LINYARD, a/k/a      Big   Kahuna,    a/k/a
Kahuna, a/k/a Gus,

                                                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
Judge. (CR-03-620)


Submitted:   September 30, 2005             Decided:   November 7, 2005


Before LUTTIG, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Francis J. Cornely, Charleston, South Carolina, for Appellant.
Robert H. Bickerton, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Carl L. Linyard was found guilty by a jury of conspiring

to distribute and possessing with intent to distribute fifty grams

or more of cocaine base “crack” (Count 1), distributing fifty grams

or   more   of   crack    (Count   3),    and    possessing   with   intent    to

distribute a quantity of crack (Counts 6-10, 13, 14). The district

court sentenced Linyard to life imprisonment on Counts 1 and 3 and

360 months of imprisonment for Counts 6-10, 13 and 14.                        All

sentences were imposed to run concurrently to each other.               Linyard

timely appeals alleging the district court erred by denying his

motion   to    suppress    evidence      found   at   his   residence   and   the

residence of Latoya Daise and that he was improperly sentenced.

For the reasons that follow, we affirm Linyard’s convictions but

vacate and remand for resentencing.

              We find no error in the district court’s decision to deny

Linyard’s motion to suppress the evidence found at his and Daise’s

residences.      See United States v. Rusher, 966 F.2d 868, 873 (4th

Cir. 1992) (stating standards of review).             Looking at the totality

of the circumstances, see United States v. Clyburn, 24 F.3d 613,

617 (4th Cir. 1994), we find the search warrants, obtained and

executed by state officials, were based on probable cause, see

Illinois v. Gates, 462 U.S. 213, 238 (1983), and provided a

substantial basis for concluding that probable cause existed for

issuing the warrants.        See United States v. Blackwood, 913 F.2d


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139, 142 (4th Cir. 1990).         Accordingly, as this is Linyard’s only

issue regarding his convictions, we affirm.

             Next, Linyard alleges that the district court improperly

enhanced his sentence under the Federal Sentencing Guidelines based

on facts not found by the jury or admitted by him.            Linyard timely

objected     to    the    sentencing     enhancements     contained      in   the

presentence report in the district court, relying on the Supreme

Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), as

authority for his position.              Since Linyard’s sentencing, the

Supreme Court has expanded its decision in Blakely.                 See United

States v. Booker, 125 S. Ct. 738 (2005).             In Booker the Supreme

Court   held      that   the   mandatory   manner   in    which    the   Federal

Sentencing     Guidelines      required    courts    to   impose    sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment.                Id. at 746, 750

(Stevens, J., opinion of the Court).                The Court remedied the

constitutional violation by severing two statutory provisions, 18

U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing

courts to impose a sentence within the applicable guideline range),

and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth

appellate standards of review for guideline issues), thereby making

the Guidelines advisory. Booker, 125 S. Ct. at 756-67 (Breyer, J.,

opinion of the Court).            This remedial scheme applies to any

sentence imposed under the mandatory Guidelines, regardless of


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whether    the    sentence    violates    the   Sixth    Amendment.         United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing Booker,

125 S. Ct. at 769 (Breyer, J., opinion of the Court)).

            Because Linyard preserved these sentencing issues by

objecting to his presentence report below on the basis of Blakely,

we review de novo.       See United States v. Mackins, 315 F.3d 399, 405

(4th Cir. 2003) (“If a defendant has made a timely and sufficient

Apprendi[*]      sentencing   objection    in   the     trial   court,   and   so

preserved his objection, we review de novo.”) (citation omitted).

When a defendant preserves a Sixth Amendment error, this court

“must    reverse    unless    [it]   find[s]    this    constitutional       error

harmless beyond a reasonable doubt, with the Government bearing the

burden of proving harmlessness.”             Id. (citations omitted); see

United    States    v.   White,   405    F.3d   208,    223   (4th   Cir.   2005)

(discussing difference in burden of proving that error affected

substantial rights under harmless error standard in Fed. R. App. P.

52(a) and plain error standard in Fed. R. App. P. 52(b)).

            Linyard alleges on appeal that if the district court had

sustained his Blakely objections to the presentence report his

sentencing range would have been 210 to 262 months of imprisonment,

far below his sentence of life.            In light of Booker, we vacate

Linyard’s sentences and remand the case for resentencing.




     *
        Apprendi v. New Jersey, 530 U.S. 466 (2000).

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           Although   the   Sentencing     Guidelines   are   no     longer

mandatory, Booker makes clear that a sentencing court must still

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

sentencing.”     125 S. Ct. at 767.      On remand, the district court

should first determine the appropriate sentencing range under the

Guidelines.    See Hughes, 401 F.3d at 546 (applying Booker on plain

error review).     The court should consider this sentencing range

along with the other factors described in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and then impose a sentence.         Id. & n.5.

If that sentence falls outside the Guidelines range, the court

should explain its reasons for the departure as required by 18

U.S.C.A. § 3553(c)(2) (West Supp. 2005).      Id.   The sentence must be

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

at 547.

           Accordingly, we affirm Linyard’s convictions but vacate

and remand for resentencing in accordance with this opinion.            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




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