UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4660

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DAVID BALDONADO, a/k/a Kicking Back,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Newport News. Jerome B. Friedman,

District Judge. (CR-04-6)

Submitted: August 19, 2005 Decided: August 31, 2005

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Mark T. Del Duca, STALLINGS & BISCHOFF, P.C., Virginia Beach,

Virginia, for Appellant. Paul J. McNulty, United States Attorney,

Michael J. Elston, Eric M. Hurt, Assistant United States Attorneys,

Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Following a jury trial, David Baldonado was convicted on

one count of conspiracy to distribute and possess with intent to

distribute controlled substances, in violation of 21 U.S.C. §§ 841

& 846 (2000), and one count of conspiracy to launder money, in

violation of 18 U.S.C.A. § 1956(h) (West Supp. 2005). The district

court sentenced Baldonado under the U.S. Sentencing Guidelines

Manual (2003) to life in prison. Baldonado timely appealed.

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

Baldonado argues that his sentence violates the Sixth Amendment

because it was based on facts that were not found by the jury

beyond a reasonable doubt. Because Baldonado preserved his

objection by asserting it in the district court, we review de novo

and “must reverse unless we find this constitutional error harmless

beyond a reasonable doubt with the Government bearing the burden of

proving harmlessness.” United States v. Mackins, 315 F.3d 399, 405

(4th Cir. 2003) (citation omitted).

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

Supreme Court held that the federal Sentencing Guidelines’

mandatory scheme, which provides for sentencing enhancements based

on facts found by the court, violated the Sixth Amendment. Id. at

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

constitutional violation by making the Guidelines advisory through

the removal of two statutory provisions that had rendered them
1Just 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 Baldonado’s sentencing.

2Because Baldonado’s sentence must be vacated on this ground,

we need not address the remainder of Baldonado’s challenges to his

sentence.

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mandatory. Id. at 746 (Stevens, J., opinion of the Court); id. at

756-57 (Breyer, J., opinion of the Court).

Baldonado argues that the district court erred by

attributing to him for sentencing purposes the equivalent of

94,100.96 kilograms of marijuana. In the absence of evidence of

jury findings on specific drug quantities, we find that the

government cannot demonstrate that any error in calculating

Baldonado’s sentence based on 94,100.96 kilograms of marijuana was

harmless.1

 

Accordingly, we affirm Baldonado’s convictions, but

vacate his sentence and remand for proceedings consistent with

Booker.2 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 (Breyer, 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. United States v. Hughes, 401

F.3d 540, 546 (4th Cir. 2005). The court should consider this
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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) (West 2000 &

Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be

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

Id. at 547.

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