UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4819

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PAUL S. ROBERTS,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Bluefield. David A. Faber, Chief

District Judge. (CR-03-226)

Submitted: October 7, 2005 Decided: January 5, 2006

Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Gregory J. Campbell, CAMPBELL LAW OFFICES, Charleston, West

Virginia, for Appellant. Kasey Warner, United States Attorney,

John L. File, Assistant United States Attorney, Beckley, West

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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 Roberts’ sentencing. 

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PER CURIAM:

Paul S. Roberts appeals his seventy-month sentence

imposed after he pled guilty to distribution of fifty grams or more

of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2000).

Citing United States v. Booker, 125 S. Ct. 738 (2005), Roberts

contends that the district court erred in sentencing him under a

mandatory Sentencing Guidelines scheme. Roberts does not challenge

his conviction on appeal. We affirm Roberts’ conviction, vacate

the sentence, and remand for further proceedings.1

Roberts asserts that he should be resentenced in light of

Booker because the district court sentenced him under a mandatory

Sentencing Guidelines scheme. In United States v. White, 405 F.3d

208 (4th Cir. 2005), we held that treating the Guidelines as

mandatory constitutes error under Booker. See id. at 216-17.

Because Roberts preserved this error for our review, we must

reverse unless the government demonstrates that the error is

harmless. See Fed. R. Crim. P. 52(a) (“[A]ny error . . . that does

not affect substantial rights must be disregarded.”); White, 405

F.3d at 223 (discussing difference in burden of proving that error

affected substantial rights under harmless error standard in Rule

52(a) and plain error standard in Fed. R. Crim. P. 52(b)). Our
2

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.” 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. 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) (West 2000 &

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

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

Id. at 547.

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review of the record as a whole leads us to conclude that the

Government, as it concedes, has not met its burden of demonstrating

that the error in sentencing Roberts under a mandatory Sentencing

Guidelines scheme does not affect his substantial rights. See

White, 405 F.3d at 223. Thus, the error is not harmless. 

Accordingly, we vacate Roberts’ sentence and remand for

further proceedings.2

 We also affirm Roberts’ conviction. 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