UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4016

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

THOMAS RONALD AVANT,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. N. Carlton Tilley, Jr.,

Chief District Judge. (CR-04-153; CR-04-213; CR-04-214; CR-04-215;

CR-04-216; CR-04-217)

Submitted: July 20, 2005 Decided: August 11, 2005

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Louis Carr Allen, III, Federal Public Defender, Greensboro, North

Carolina, for Appellant. Paul Alexander Weinman, Assistant United

States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Thomas Ronald Avant appeals from the judgment of the

district court sentencing him to 151 months’ imprisonment for his

role in a series of bank robberies and attempted bank robberies.

Avant does not challenge his conviction, which we accordingly

affirm. Finding that the district court’s pronouncement of a lower

alternative sentence demonstrates that Avant’s substantial rights

were abridged by the sentence actually imposed, we grant the motion

to remand, vacate the sentence, and remand for resentencing

consistent with United States v. Booker, 125 S. Ct. 738 (2005). 

Avant pled guilty to five counts of bank robbery and one

count of attempted bank robbery, in violation of 18 U.S.C.

§ 2113(a) (2000). At sentencing, the district court pronounced a

sentence of 151 months in accordance with the United States

Sentencing Guidelines. The district court also announced an

alternative sentence of nine years (108 months) based on recent

developments calling into question the application of mandatory

sentencing guidelines schemes. See Blakely v. Washington, 124 S.

Ct. 2531 (2004). 

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

Supreme Court ruled the Sixth Amendment is violated when a district

court, acting pursuant to the Sentencing Reform Act and the

guidelines, imposes a sentence greater than the maximum guideline

sentence authorized by the facts found by the jury alone. See id.
*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 Avant’s sentencing. See generally Johnson v. United

States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”

if “the law at the time of trial was settled and clearly contrary

to the law at the time of appeal).

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at 746, 750. This court concluded that such a violation amounts to

plain error. See United States v. Hughes, 401 F.3d 540, 547-48

(4th Cir. 2005). To demonstrate plain error, a defendant must

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

affected his substantial rights. Id. In United States v. White,

405 F.3d 208 (4th Cir. 2005), we held that a defendant can

demonstrate the prejudice associated with a mandatory application

of the guidelines on the basis of statements by the sentencing

court that it would otherwise have departed from the guidelines.

See id. at 223-24. Here, the district court’s pronouncement of an

alternative, lower sentence satisfies this burden.*

 

Accordingly, we vacate Avant’s sentence and remand for

resentencing. 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, making all factual findings appropriate for that

determination. See Hughes, 401 F.3d at 546. The court should

consider this sentencing range along with the other factors
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described in 18 U.S.C. § 3553(a) (2000), and then impose a

sentence. Id. If that sentence falls outside the Guidelines

range, the court should explain its reasons for the departure as

required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must

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

 Id. at 546-47.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the material before

the court and argument would not aid the decisional process. 

AFFIRMED IN PART;

VACATED AND REMANDED IN PART