UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4597
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTWAN ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (CR-02-1153)
Submitted: March 29, 2006 Decided: April 12, 2006
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
John H. Hare, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. Jonathan S. Gasser, Acting United States
Attorney, William K. Witherspoon, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Antwan Robinson pled guilty to possession with intent to
distribute more than five grams of crack cocaine, in violation of
21 U.S.C. § 841(a)(1) (2000), and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000). The
district court sentenced him as a career offender to a 262-month
term of imprisonment. Robinson appeals his sentence, citing United
States v. Booker, 543 U.S. 220 (2005), and asserting that he should
be resentenced under an advisory Guidelines scheme. Robinson also
has filed a motion to remand for resentencing. We grant the motion
to remand, vacate the sentence, and remand for resentencing.
Robinson contends that the district court committed
statutory Booker error by treating the Sentencing Guidelines as
mandatory, not advisory. Because Robinson raised a timely
objection at sentencing based upon Blakely v. Washington, 542 U.S.
296 (2004), he has preserved his claim of statutory Booker error.
United States v. Rodriguez, 433 F.3d 411, 415-16 (4th Cir. 2006).
Thus, we review Robinson’s claim for harmless error, which places
“the burden . . . on the Government to show that such an error did
not affect the defendant’s substantial rights.” Id. at 416. Our
review of the transcript of the sentencing hearing leads us to
conclude that the Government has not met its burden to show that
the error is harmless. The district court’s silence on how it
would apply the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
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2005) in ascertaining a proper sentence for Robinson must be
construed in Robinson’s favor. Rodriguez, 433 F.3d at 416. Thus,
we conclude that Robinson is entitled to be resentenced.1
Accordingly, we vacate Robinson’s sentence, grant
Robinson’s motion to remand, and remand for resentencing consistent
with Booker and United States v. Hughes, 401 F.3d 540 (4th Cir.
2005).2 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.
VACATED AND REMANDED
1
In light of our vacatur for statutory Booker error, we need
not decide whether, as Robinson also contends on appeal, the
district court committed Sixth Amendment error in sentencing him as
a career offender. See Rodriguez, 433 F.3d at 416 n.8.
2
“We of course offer no criticism of the district judge, who
followed the law and procedure in effect at the time of
[Robinson’s] sentencing.” Hughes, 401 F.3d at 545 n.4.
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