UNITED STATES of America, Plaintiff-Appellee, v. Ramon ACOSTA-GALLEGOS, Defendant-Appellant, 179 F. App'x 183

PER CURIAM: Ramon Acosta-Gallegos appeals the seventy-month sentence imposed after he pleaded guilty to one count of reentry after deportation after having been convicted of a felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2000). In accordance with the recommendation in United States v. Hammond, 378 F.3d 426 (4th Cir.) (order), opinion issued by 381 F.3d 316 (4th Cir.2004) (en banc), vacated, 543 U.S. 1097, 125 S.Ct. 1051, 160 L.Ed.2d 997 (2005), the district court also announced an alternate sentence pursuant to 18 U.S.C.A. § 3553(a) (West 2000 & Supp.2005), of six years of imprisonment.

Aeosta-Gallegos argues that his sentence must be vacated and the case remanded for resentencing because the district court treated the Sentencing Guidelines as mandatory. He does not assert any Sixth Amendment error in the determination of his sentence. Acosta-Gallegos objected to the Guideline calculations at sentencing based on the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We therefore review the district court’s mandatory application of the Guidelines to determine Aeosta-Gallegos’ sentence for harmless error. United States v.

Rodriguez, 433 F.3d 411, 416 (4th Cir.2006). In harmless error review, the “defendant is entitled to relief if an error has affected his substantial rights,” and the burden is on the Government to show that any error did not affect the defendant’s substantial rights. Id. We have recognized that the application of the Guidelines as a mandatory determinant in sentencing is error. United States v. White, 405 F.3d 208, 216-17 (4th Cir.), cert, denied, — U.S. -, 126 S.Ct. 668, 163 L.Ed.2d 539 (2005).

The Government concedes that the district court erred in sentencing AeostaGallegos pursuant to a mandatory Guidelines scheme, but argues that the district court’s announcement of an alternative sentence renders any error harmless. Specifically, the Government asserts that the Guideline range was properly calculated and would apply on remand, the sentence is within that range, and in view of the lengthier alternate sentence, AeostaGallegos would not obtain any relief on resentencing. Our review of the record leads us to agree with the Government’s position.

Aeosta-Gallegos’ sentence is at the bottom of the Guideline range, and the district court announced a slightly higher sentence when it considered the Guidelines as advisory only in conjunction with the factors listed in 18 U.S.C.A. § 3553(a). We conclude that the district court’s error in sentencing Aeosta-Gallegos pursuant to the then-mandatory Guidelines did not affect his substantial rights. Accordingly, we affirm Aeosta-Gallegos’ sentence.

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. U.S. Sentencing Guidelines Manual (2003).