UNITED STATES of America, Plaintiff-Appellee, v. Prince Andre PRICE, Defendant-Appellant, 152 F. App'x 327

PER CURIAM: Prince Andre Price appeals Ms seventy-two month sentence resultmg from Ms conviction for being a felon in possession of a firearm, 18 U.S.C. § 922(g) (2000). We affirm Price’s conviction, but vacate and remand for resentencing. Price pled guilty and does not challenge his conviction. Price claims the district court erred m failing to treat the sentencrng guidehnes as advisory when imposmg his sentence. As Price properly raised tMs issue m the district court by objectmg to his sentence based on United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review for harmless error.

The Government bears the burden in harmless error review of showing beyond a reasonable doubt that the error did not affect the defendant’s substantial rights. United States v. Mackins, 315 F.3d 399, 405 (4th Cir.2003). The Government did not meet this burden because the district court gave no indication what the sentence would have been had the district court not been bound by the guidehnes. We would have to speculate that the district court’s error m thinking itself bound by the guidehnes did not affect the sentence. In hght of Booker, we vacate Price’s sentence and remand the case for resentencing.

Although the sentenemg gradelines 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 determme the appropriate sentencing range under the guidehnes, making all factual findings appropriate for that determination. See United States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005) (applying Booker on plain error review). 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.

Id. If that sentence falls outside the guidehnes 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 m the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 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 Price’s sentencing.