                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4491



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DARYL WILKES, a/k/a D,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CR-03-161)


Submitted:   April 24, 2006                 Decided:   May 26, 2006


Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Andrew A. Protogyrou, PROTOGYROU & RIGNEY, P.L.C., Norfolk,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
William D. Muhr, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Daryl Wilkes was convicted by a jury of conspiracy to

possess with intent to distribute and to distribute cocaine base

and cocaine, twenty counts of distributing cocaine base, nine

counts of distributing cocaine, three counts of possession of a

firearm in furtherance of a drug trafficking crime, two counts of

possession with intent to distribute cocaine, and one count of

possession with intent to distribute cocaine base.      Wilkes was

sentenced on June 16, 2004, approximately one week prior to the

Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296

(2004). He received a 952-month sentence, consisting of 292 months

on the drug convictions and a consecutive 660 months on the firearm

convictions.    On appeal, Wilkes challenges his sentence under

United States v. Booker, 543 U.S. 220 (2005), arguing that the

district court erred in its mandatory application of the sentencing

guidelines.1   We affirm Wilkes’ convictions, vacate his sentence,

and grant his motion to remand for resentencing.

          This court reviews this claim for plain error, as Wilkes

did not object in the district court to his sentence on the basis



     1
      We previously deferred ruling on Wilkes’ motion to remand
based on Booker.   In his brief, Wilkes does not raise a Sixth
Amendment argument under Booker.     In fact, Wilkes argues the
“reasonableness” standard applied to cases on appeal post-Booker.
Because Wilkes was sentenced pre-Booker, this analysis is
inapplicable. However, Wilkes has sufficiently stated a claim that
the district court erred in treating the sentencing guidelines as
mandatory.

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of the mandatory application of the guidelines.               United States v.

White, 405 F.3d 208, 223 (4th Cir.), cert. denied, 126 S. Ct. 668

(2005).    To demonstrate plain error, a defendant must establish

that error occurred, that it was plain, and that it affected the

defendant’s substantial rights.             United States v. Olano, 507 U.S.

725, 731-32 (1993); United States v. Hughes, 401 F.3d 540, 547-48

(4th Cir. 2005).          If a defendant establishes these requirements,

the   court’s     “discretion     is     appropriately   exercised   only   when

failure to do so would result in a miscarriage of justice, such as

when the defendant is actually innocent or the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings.”       Hughes, 401 F.3d at 555 (internal quotation marks

and citation omitted).

               In White, while this court determined that imposing a

sentence under the guidelines as mandatory was error that was

plain,    it    further    held   that    prejudice   would   not   be   presumed

relative to such error.            White, 405 F.3d at 219-20, 224.             In

determining whether the error affected the outcome of the district

court    proceedings,       the   court    must   consider,   “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 (citations and footnotes omitted).             To

make this showing, a defendant must “demonstrate, based on the

record, that the treatment of the guidelines as mandatory caused


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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 (citation

omitted) (first alteration added), this court concluded the error

did   not   affect    White’s   substantial    rights   and   affirmed   the

sentence.    Id. at 225.

            In this case, the district court sentenced Wilkes at the

bottom of the guidelines range on the drug counts.2            Because the

court intimated that it would have imposed a lighter sentence if it

were not bound by the guidelines on the drug convictions, the

record provides a nonspeculative basis for concluding that the

treatment of the guidelines as mandatory affected the district

court’s selection of the sentence imposed.           See White, 405 F.3d at

223-25.     Thus, we agree, and the Government also concedes, that

Wilkes is entitled to resentencing consistent with Booker.

            Accordingly, we affirm Wilkes’ convictions, vacate his

sentence, and grant his motion to remand for resentencing.3               We


      2
      Because Wilkes received the statutory mandatory minimum on
the firearm counts, those sentences are not implicated by Booker.
      3
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Wilkes’ sentencing.
Although the guidelines are no longer mandatory, Booker makes clear
that a sentencing court must still “consult [the] Guidelines and
take them into account when sentencing.” 543 U.S. at 264 (Breyer,

                                      - 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




J., opinion of the Court). On remand, the district court should
first determine the appropriate sentencing range under the
guidelines, making all factual findings appropriate for that
determination. 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. Hughes, 401 F.3d at 546. 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). Hughes, 401
F.3d at 546.     The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. at 547.

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