                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-4566



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


VANDER MOORE GORE, JR.,

                                             Defendant - Appellant.



                            No. 02-4908



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOHNNY LEE GORE, a/k/a Manager,

                                             Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                 (S. Ct. Nos. 04-1154; 04-7986)


Submitted:   May 26, 2006                 Decided:   August 18, 2006


Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


William Isaac Diggs, LAW OFFICES OF WILLIAM ISAAC DIGGS, Myrtle
Beach, South Carolina, for Appellant Vander Moore Gore, Jr.;
Johnny Lee Gore, Appellant Pro Se.     Jonathan S. Gasser, United
States Attorney, Rose Mary Parham, Robert C. Jendron, Assistant
United States Attorneys, Florence, South Carolina; Thomas E. Booth,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

          Vander Moore Gore, Jr. (“Vander Gore”) and Johnny Lee

Gore (“Johnny Gore”) were convicted by a jury in the United States

District Court for the District of South Carolina on charges of

conspiracy to possess with intent to distribute multiple substances

in violation of 21 U.S.C. § 841(a)(1) (2000).      Vander Gore was

sentenced to life imprisonment; Johnny Gore was sentenced to 360

months’ imprisonment.   On direct appeal, we affirmed.   See United

States v. Gore, Nos. 02-4566, 02-4908, 102 Fed. App’x 292 (4th Cir.

June 22, 2004) (unpublished).   We also denied Johnny Gore’s motion

for permission to file a pro se supplemental brief in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).    Pursuant to United

States v. Booker, 543 U.S. 223 (2005), the Supreme Court of the

United States vacated the judgments and remanded both cases to this

court for further consideration. See Gore v. United States, 125 S.

Ct. 1746 (2005) (Vander Gore); Gore v. United States, 125 S. Ct.

1407 (2005) (Johnny Gore).

          In Booker, the Supreme Court held that when a defendant

is sentenced under a mandatory guidelines scheme, “[a]ny fact

(other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established

by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” 543 U.S.

at 224.   Thus, error under the Sixth Amendment occurs when the


                                - 3 -
district   court     imposes    a   sentence   greater   than   the   maximum

permitted based on facts found by a jury or admitted by the

defendant.    Id..

           Subsequently, in United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005), this court held that a sentence that was

imposed under the pre-Booker mandatory sentencing scheme and was

enhanced based on facts found by the court, not found by a jury or

admitted by the defendant, constitutes plain error.              That error

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

guideline scheme.        Hughes, 401 F.3d at 546-56.            We directed

sentencing courts to calculate the appropriate guideline range,

consider that range in conjunction with other relevant factors

under the guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2005), and impose a sentence.           If the district court imposes a

sentence outside the guideline range, the court should state its

reasons for doing so.          Hughes, 401 F.3d at 546; see also United

States v. Green, 436 F.3d 449, 459-56 (4th Cir. 2006).           Hughes also

recognized “that after Booker, there are two potential errors in a

sentence imposed pursuant to the pre-Booker mandatory guidelines

regime: a Sixth Amendment error, which Hughes raised, and an error

in failing to treat the guidelines as advisory, which Hughes did

not raise.”   Hughes, 401 F.3d at 552.


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

denied, 125 S. Ct. 668 (2005), we held that treating the guidelines

as mandatory, even in the absence of a Sixth Amendment violation,

was plain error in light of Booker.        White, 405 F.3d at 216-17.        We

declined to presume prejudice in this situation, 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 record as a 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 thus affirmed the

sentence.   Id. at 225; see also United States v. Collins, 412 F.3d

at 524-25 (finding that defendant failed to demonstrate prejudice

from being sentenced under the mandatory sentencing guidelines).

            Vander Gore (No. 02-4566) was indicted and convicted of

participating in a drug trafficking conspiracy involving fifty


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grams of crack cocaine and five kilograms of cocaine.                          These

amounts correspond to a base offense level of thirty-two. See U.S.

Sentencing    Guidelines         Manual    (“USSG”)      §   2D1.1(c)(4).        The

presentence report (“PSR”) assigned Vander Gore a base offense

level of thirty-eight, based on 524.46 grams of crack cocaine and

285.04    kilograms   of    powder       cocaine,   resulting     in   a   combined

marijuana equivalency of 67,497.2 grams.              See USSG § 2D1.1(c)(1).

            The PSR also recommended a four-level enhancement for a

leadership role in the conspiracy, pursuant to USSG § 3B1.1(a), and

a two-level enhancement for obstruction of justice, pursuant to

USSG § 3C1.1. Therefore, the PSR recommended a total offense level

of    forty-four.          The     district      court       adopted   the    PSR’s

recommendations, including the enhancements by a preponderance of

the evidence, and the total offense level of forty-four resulted in

Vander Gore’s life sentence.              See USSG Ch. 5, Pt. A (sentencing

table).

            Absent judicial factfinding concerning the drug weight,

as well as the enhancements for Vander Gore’s leadership role and

obstruction of justice, Vander Gore’s total offense level would

have been thirty-two.        Based on a criminal history category of I,

the   guidelines      would       have     provided      for    121-151      months’

imprisonment.    See USSG Ch. 5, Pt. 1 (sentencing table).                   Because

Vander Gore’s sentence was imposed under the pre-Booker mandatory

sentencing scheme and was enhanced based on facts found by the


                                         - 6 -
court, not found by a jury or admitted by Vander Gore, his life

sentence constitutes plain error that affected his substantial

rights.   See Hughes, 401 F.3d at 546.         Therefore, we vacate Vander

Gore’s sentence and remand the case to the district court for

resentencing in light of Booker.

            The   jury   convicted       Johnny   Gore   (No.   02-4908)    of

distribution and possession with intent to distribute 500 grams or

more of cocaine, and the district court sentenced him to 360

months’ imprisonment.          Because Johnny Gore had previously been

convicted of two prior felony drug convictions, he qualified as a

career    offender.      See    USSG    §   4B1.1(a).    Pursuant   to     USSG

§ 4B1.1(b), because Gore’s statutory maximum sentence was life

imprisonment, see 21 U.S.C. § 841(b)(1)(B)(ii)(II) (2000), the PSR

provided for an offense level of thirty-seven.                  As a career

offender, Johnny Gore’s criminal history category was VI. See USSG

§ 4B1.1(b). Accordingly, Johnny Gore’s range of imprisonment under

the then-mandatory guidelines was 360 months to life. See USSG Ch.

5, Pt. A (sentencing table).           Therefore, his 360-month sentence,

which was only enhanced based on his prior convictions, did not

violate the Sixth Amendment.        See United States v. Cheek, 415 F.3d

349, 352-53 (4th Cir. 2005).

            However, even in the absence of Sixth Amendment error,

the district court’s treatment of the sentencing guidelines as

mandatory was erroneous.          See White, 405 F.3d at 216-17.             We


                                       - 7 -
conclude that, in light of Johnny Gore’s attempts to raise the

sentencing issue on direct appeal* and on other occasions, he has

preserved the issue. See generally United States v. Rodriguez, 433

F.3d       411,    415-16   (4th   Cir.   2006).      Therefore,   we   review   to

determine whether the error was harmless.               See Booker, 543 U.S. at

268 (noting that appellate courts may apply the plain error and

harmless error doctrines in determining whether resentencing is

required); Fed. R. Crim. P. 52(a) (stating that an appellate court

may disregard any error that does not affect substantial rights).

                  On harmless error review, the Government bears the burden

of showing beyond a reasonable doubt that the error did not affect

Johnny Gore’s substantial rights.                 United States v. Mackins, 315

F.3d 399, 405 (4th Cir. 2003); United States v. Stokes, 261 F.3d

496, 499 (4th Cir. 2001).           The Government has not met this burden,

and indeed concedes Johnny Gore should be resentenced under an

advisory application of the sentencing guidelines.                      We vacate

Johnny Gore’s sentence and remand his case to the district court

for resentencing in light of Booker.                Furthermore, we deny Johnny

Gore’s motions for summary remand, to file exhibits, and to file a

pro se supplemental brief, in which he makes the specious argument



       *
      Although Johnny Gore sought to file a pro se supplemental
brief in his initial direct appeal raising a challenge to the
imposition of sentence pursuant to the then-mandatory guidelines
claim, that brief was rejected because he was represented by
counsel and thus had no independent right to file a pro se
supplemental brief.

                                          - 8 -
that   his    sentence    for    conspiracy     to   possess   with   intent   to

distribute 500 grams or more of cocaine is constitutionally infirm

because      the   conduct     was   never   charged    by   indictment.       The

superseding indictment clearly alleged a conspiracy involving,

among other controlled substances, five kilograms or more of

cocaine.

       In sum, we affirm the convictions of both Vander Gore and

Johnny    Gore     for   the   reasons    set   forth   in   our   2004   opinion

addressing these appeals.            We vacate both Vander Gore’s and Johnny

Gore’s sentences and remand for further proceedings in light of

Booker. 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 AND REMANDED IN PART




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