UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-5063

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CARL L. LINYARD, a/k/a Big Kahuna, a/k/a

Kahuna, a/k/a Gus,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Beaufort. Sol Blatt, Jr., Senior District

Judge. (CR-03-620)

Submitted: September 30, 2005 Decided: November 7, 2005

Before LUTTIG, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Francis J. Cornely, Charleston, South Carolina, for Appellant.

Robert H. Bickerton, Assistant United States Attorney, Charleston,

South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Carl L. Linyard was found guilty by a jury of conspiring

to distribute and possessing with intent to distribute fifty grams

or more of cocaine base “crack” (Count 1), distributing fifty grams

or more of crack (Count 3), and possessing with intent to

distribute a quantity of crack (Counts 6-10, 13, 14). The district

court sentenced Linyard to life imprisonment on Counts 1 and 3 and

360 months of imprisonment for Counts 6-10, 13 and 14. All

sentences were imposed to run concurrently to each other. Linyard

timely appeals alleging the district court erred by denying his

motion to suppress evidence found at his residence and the

residence of Latoya Daise and that he was improperly sentenced.

For the reasons that follow, we affirm Linyard’s convictions but

vacate and remand for resentencing.

We find no error in the district court’s decision to deny

Linyard’s motion to suppress the evidence found at his and Daise’s

residences. See United States v. Rusher, 966 F.2d 868, 873 (4th

Cir. 1992) (stating standards of review). Looking at the totality

of the circumstances, see United States v. Clyburn, 24 F.3d 613,

617 (4th Cir. 1994), we find the search warrants, obtained and

executed by state officials, were based on probable cause, see

Illinois v. Gates, 462 U.S. 213, 238 (1983), and provided a

substantial basis for concluding that probable cause existed for

issuing the warrants. See United States v. Blackwood, 913 F.2d
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139, 142 (4th Cir. 1990). Accordingly, as this is Linyard’s only

issue regarding his convictions, we affirm. 

Next, Linyard alleges that the district court improperly

enhanced his sentence under the Federal Sentencing Guidelines based

on facts not found by the jury or admitted by him. Linyard timely

objected to the sentencing enhancements contained in the

presentence report in the district court, relying on the Supreme

Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), as

authority for his position. Since Linyard’s sentencing, the

Supreme Court has expanded its decision in Blakely. See United

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

Court held that the mandatory manner in which the Federal

Sentencing Guidelines required courts to impose sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment. Id. at 746, 750

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

constitutional violation by severing two statutory provisions, 18

U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing

courts to impose a sentence within the applicable guideline range),

and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth

appellate standards of review for guideline issues), thereby making

the Guidelines advisory. Booker, 125 S. Ct. at 756-67 (Breyer, J.,

opinion of the Court). This remedial scheme applies to any

sentence imposed under the mandatory Guidelines, regardless of
*

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

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whether the sentence violates the Sixth Amendment. United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing Booker,

125 S. Ct. at 769 (Breyer, J., opinion of the Court)).

 Because Linyard preserved these sentencing issues by

objecting to his presentence report below on the basis of Blakely,

we review 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[*

] sentencing objection in the trial court, and so

preserved his objection, we review de novo.”) (citation omitted).

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)). 

Linyard alleges on appeal that if the district court had

sustained his Blakely objections to the presentence report his

sentencing range would have been 210 to 262 months of imprisonment,

far below his sentence of life. In light of Booker, we vacate

Linyard’s sentences and remand the case for resentencing.
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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. On remand, the district court

should first determine the appropriate sentencing range under the

Guidelines. See Hughes, 401 F.3d at 546 (applying Booker on plain

error review). 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. 2005). Id. The sentence must be

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

at 547.

Accordingly, we affirm Linyard’s convictions but vacate

and remand for resentencing in accordance with this opinion. 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