UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4953

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES EDWARD BYRD, III,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Richard L. Voorhees,

District Judge. (CR-01-178)

Submitted: July 29, 2005 Decided: September 15, 2005

Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Randolph M. Lee, Charlotte, North Carolina, for Appellant.

Gretchen C. F. Shappert, United States Attorney, Charlotte, North

Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

James Edward Byrd, III, appeals his conviction and

360-month sentence imposed after the jury found him guilty of

conspiracy to distribute and possess with intent to distribute more

than fifty grams of crack cocaine, in violation of 21 U.S.C. § 846

(2000). He contends that the evidence was insufficient to convict

him and, citing Blakely v. Washington, 542 U.S. 296 (2004), and

United States v. Booker, 125 S. Ct. 738 (2005), asserts that his

sentence is unconstitutional. We affirm Byrd’s conviction, vacate

Byrd’s sentence, and remand for resentencing.

Byrd contends that the evidence did not establish that he

entered into an agreement to distribute crack cocaine with Terry

Lamont Huntley, a charged co-conspirator. We review de novo the

district court’s denial of a motion for judgment of acquittal filed

pursuant to Fed. R. Crim. P. 29. United States v. Lentz, 383 F.3d

191, 199 (4th Cir. 2004), cert. denied, 125 S. Ct. 1828 (2005).

Where, as here, the motion was based on insufficient evidence,

“[t]he verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.” Glasser v. United States, 315 U.S. 60, 80 (1942). We

have reviewed the trial testimony in the joint appendix and are

convinced that the evidence was sufficient to convict Byrd. See

United States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001)

(discussing elements of offense); United States v. Mills, 995 F.2d
1

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

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480, 485 n.1 (4th Cir. 1993) (“[E]vidence of a buy-sell

transaction, when coupled with a substantial quantity of drugs,

would support a reasonable inference that the parties were

coconspirators.”).

Byrd also asserts that his sentence is unconstitutional

in light of Blakely and Booker. Because Byrd preserved this issue

by objecting to the presentence report based upon Blakely, our

review is 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[1] sentencing objection in the trial court, and so

preserved his objection, we review de novo.”). When a defendant

preserves a Sixth Amendment error, we “must reverse unless we find

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)).

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.
2

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 Byrd’s sentencing. 

3Although the guidelines are no longer mandatory, Booker makes

clear that a sentencing court must still “consult [the]

[g]uidelines and take them into account when sentencing.” 125 S.

Ct. at 767 (Breyer, J., opinion of the Court). On remand, the

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125 S. Ct. at 746, 750 (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 mandatory. Id. at 746 (Stevens, J., opinion

of the Court); id. at 756-67 (Breyer, J., opinion of the Court).

Here, the district court sentenced Byrd under the

mandatory federal sentencing guidelines and enhanced his sentence

based upon facts found by a preponderance of the evidence.

Specifically, the court established a base offense level of thirtysix based on a finding that Byrd was responsible for 874 grams of

crack cocaine. See U.S. Sentencing Guidelines Manual (“USSG”)

§ 2D1.1(c)(2) (2003). The court also increased the base offense

level by two levels under USSG § 3A1.2(a). Under Booker, we find

that the 360-month sentence Byrd received violates the Sixth

Amendment. We also conclude that the error is not harmless in

light of the alternate sentence announced by the district court

before Booker was decided.2

Accordingly, we affirm Byrd’s conviction, vacate Byrd’s

sentence, and remand for resentencing.3

 We dispense with oral
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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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