UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4750
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS JOSEPH DALTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-03-739)
Submitted: August 26, 2005 Decided: October 5, 2005
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
H. Stanley Feldman, Charleston, South Carolina, for Appellant.
Jonathan S. Gasser, Acting United States Attorney, Miller W.
Shealy, Jr., Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas Joseph Dalton pled guilty, without a plea
agreement, to one count of credit card fraud, in violation of 18
U.S.C. § 1029 (2000). The district court sentenced Dalton under
the federal sentencing guidelines to 105 months’ imprisonment and
announced an alternative sentence of 120 months’ imprisonment
pursuant to our directive in United States v. Hammoud, 378 F.3d 426
(4th Cir.) (order), opinion issued by 381 F.3d 316 (4th Cir. 2004)
(en banc), vacated, 125 S. Ct. 1051 (2005).
Dalton has appealed, challenging his sentence under the
Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738
(2005). Dalton preserved this issue by objecting to the
presentence report based on Blakely v. Washington, 542 U.S. 296
(2004), and our review is de novo. See United States v. Mackins,
315 F.3d 399, 405 (4th Cir. 2003). 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)).
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We conclude that Dalton is entitled to be resentenced
under Booker,1 as the Government concedes.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. 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
described in 18 U.S.C. § 3553(a)(2000), and then impose a sentence.
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 547.
As Dalton raises no issues on appeal relating to his
conviction, we affirm his conviction, vacate the sentence imposed
by the district court, and remand for resentencing consistent with
Booker. See Hughes at 546 (citing Booker, 125 S. Ct. at 764-65,
1
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 Dalton’s sentencing.
2
While the Government seeks to have this court impose the
district court’s stated alternative sentence, we find that such
action on the part of this court would unduly constrain the
district court’s authority to impose a revised sentence.
Accordingly, we decline to do so, leaving the imposition of a
revised sentence for the district court’s plenary consideration.
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767 (Breyer, J., opinion of the Court)). 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
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