                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4842



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


SCOTTIE LEE CLAY,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-67)


Submitted:   January 27, 2006              Decided:   March 21, 2006


Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


David Schles, STOWERS & ASSOCIATES, Charleston, West Virginia, for
Appellant.   Charles T. Miller, Acting United States Attorney,
Steven I. Loew, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Scottie Lee Clay appeals his sentence for possession of

stolen firearms in violation of 18 U.S.C. §§ 922(j) and 924(a)(2).1

We affirm in part, vacate in part, and remand for resentencing.

               Clay contends that the district court used judicially

found       facts   to   enhance    his    sentence     in   violation   of   United

States v. Booker, 543 U.S. 220 (2005). Clay admitted to possessing

four stolen firearms, but the district court attributed twenty-

seven stolen firearms to him, resulting in a six-level increase in

Clay’s offense level. This enhanced Clay’s sentence based on facts

not found by the jury beyond a reasonable doubt or admitted by

Clay.        However,     there    is    no    Sixth   Amendment   error    where   a

defendant’s sentence does not exceed the maximum authorized by the

facts he admitted.         United States v. Evans, 416 F.3d 298, 300 (4th

Cir. 2005).         The four guns Clay admitted to support a two offense

level       enhancement     under       U.S.    Sentencing     Guidelines     Manual

§   2K2.1(b)(1)(A)        (2005),       yielding   a   total   offense     level    of

fourteen.2          With Clay’s category III criminal history, Clay’s

sentencing range would have been twenty-one to twenty-seven months.



        1
         Clay does not appeal his conviction.
        2
      As in Evans, 416 F.3d at 300 n.4 (4th Cir. 2005), for
purposes of determining whether a Sixth Amendment violation
occurred, the sentence imposed on Clay is compared against the
guideline range he should have received, based on a jury verdict or
admitted conduct, excluding the adjustment for acceptance of
responsibility.

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Clay’s sentence of twenty-seven months falls within that range. As

Clay’s sentence did not exceed the maximum authorized by the facts

of    the   offense   to    which    he    pled    guilty,    no   Sixth   Amendment

violation occurred.

             Clay also contends that the district court’s “statutory

Booker error”--treating the sentencing guidelines as mandatory--

requires resentencing.            See United States v. Rodriguez, 433 F.3d

411, 414 (4th Cir. 2006) (“[A] court commits statutory error [under

Booker] if it treats the Guidelines as mandatory, rather than as

advisory.”).     Clay preserved this issue by objecting under Blakely

v. Washington, 542 U.S. 296 (2004), and our review thus proceeds

under a harmless error analysis.              See Rodriguez, 433 F.3d at 415-

16.    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. Because the district court gave no

indication of the sentence it would have imposed under a system of

advisory Guidelines, we conclude that the government has failed to

establish that the error in treating the Guidelines as mandatory

was harmless.     See id. at 416.

             Accordingly, we affirm Clay’s conviction, vacate his

sentence, and remand for resentencing in accordance with Booker.

We    dispense   with      oral    argument       because    the   facts and   legal




                                          - 3 -
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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