                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4694



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ANTHONY JEROME BROWN,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-13)


Submitted:   July 29, 2005            Decided:   September 23, 2005


Before NIEMEYER, LUTTIG, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Michael
A. DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Anthony   Jerome   Brown   appeals    the   thirty-nine   month

sentence imposed after he pled guilty to escaping from the custody

of the United States, in violation of 18 U.S.C. § 751(a) (2000).

He asserts that his sentence violates the Sixth Amendment.1          Brown

does not challenge his conviction.        Accordingly, we affirm his

conviction,    vacate   his   sentence,    and    remand    for   further

proceedings.

           On September 26, 2003, while an inmate at the Troy House

Community Corrections Center in Durham, North Carolina, Brown

escaped.   Brown remained at large until December 31, 2003, when he

was apprehended in Roxboro, North Carolina, following a high speed

chase, an altercation with the arresting officer, and an attempted

carjacking.    After Brown entered his guilty plea to violating

§ 751(a), but before sentencing, the Supreme Court rendered its

decision in Blakely v. Washington, 542 U.S. 296 (2004).

           At sentencing, the district court established a base

offense level of thirteen, pursuant to U.S. Sentencing Guidelines

Manual (“USSG”) § 2P1.1(a)(1) (2003).     Brown received a five-level

increase for use of force against the arresting officer pursuant to

USSG § 2P1.1(b)(1), a two-level increase for reckless endangerment



     1
      Brown also challenges the facts supporting the enhancement
for use of force. We need not resolve that issue at this time.
See United States v. Hughes, 401 F.3d 540, 546 n.15 (4th Cir.
2005).

                                 - 2 -
during flight pursuant to USSG § 3C1.2, and a three-level downward

adjustment   for   acceptance   of   responsibility   pursuant   to   USSG

§ 3E1.1.     Brown’s corresponding sentencing range for a total

offense level of seventeen and a criminal history category of IV

was thirty-seven to forty-six months of imprisonment. Over Brown’s

objection based upon Blakely, the district court sentenced Brown to

thirty-nine months in prison.

           On appeal, Brown argues that both enhancements violate

his Sixth Amendment rights.      Because Brown preserved this issue,

this court’s review is 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[2] sentencing objection in the trial court,

and so preserved his objection, we review de novo.”).             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)).

           Although Brown pleaded guilty to escaping, a close review

of the plea agreement and Fed. R. Crim. P. 11 colloquy reveals that


     2
      Apprendi v. New Jersey, 530 U.S. 466 (2000).

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Brown did not admit to the facts that underpinned the sentencing

enhancements for use of force or reckless endangerment during

flight.          Rather, the relevant facts were found by the district

court       at    sentencing   by   a    preponderance   of   the   evidence.

Accordingly, because the district court’s sentencing enhancements

were based upon facts not admitted to by Brown, we conclude that

they were applied in error.3 Brown’s recalculated guidelines range

without the two judicial enhancements would be twenty-four to

thirty months based upon an offense level of thirteen4 and a

criminal history category of IV.           We therefore conclude that this

error is not harmless.

                 Accordingly, we affirm Brown’s conviction, vacate Brown’s

sentence, and remand to the district court for resentencing.5              We


        3
      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 Brown’s sentencing.
        4
      See United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir.
2005) (noting that, in determining whether Sixth Amendment error
occurred, sentence imposed must be compared to permissible
guideline range before adjusting for acceptance of responsibility).
        5
      Although the sentencing guidelines are no longer mandatory,
United States v. Booker, 125 S. Ct. 738, 767 (2005), makes clear
that a sentencing court must still “consult [the] Guidelines and
take them into account when sentencing.” On remand, the district
court should first determine the appropriate sentencing range under
the guidelines.    Hughes, 401 F.3d at 546.      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.

                                        - 4 -
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




2005). Id. The sentence must be within the statutorily prescribed
range and reasonable. Id. at 547.

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