Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 04-4709
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
ALAN ROSS SEALOCK, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-02-344-MJG)
Submitted:
November 18, 2005
Decided:
December 29, 2005
Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.
David R. Solomon, GLASER & SOLOMON, L.L.C., Baltimore, Maryland,

for Appellant. Allen F. Loucks, United States Attorney, Angela R.
White, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
PER CURIAM:
Alan Ross Sealock, Jr., appeals his sentence of 115
months imprisonment after a plea of guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. 922(g) (2000).
Sealocks only claim is that the district court erred in sentencing
him under a mandatory guidelines scheme in light of United States
v. Booker, 125 S. Ct. 738 (2005).
Sealock asserts his case should
be remanded for imposition of the district courts alternative

sentence of seventy-nine months. The Government asks this court to
direct the district court to amend its judgment to impose the
seventy-nine month sentence.
For the reasons set forth below, we
affirm Sealocks conviction, but vacate his sentence and remand for
resentencing.
At sentencing, the district court imposed an alternative
sentence based on its understanding of Blakely v. Washington, 542
U.S. 296 (2004), and as suggested by United States v. Hammoud, 381
F.3d 316, 353-54 (4th Cir. 2004) (en banc), judgment vacated, 125
S. Ct. 1051 (2005). The district court interpreted Blakely to mean
that judicial fact finding regarding any sentencing factors (and
using a preponderance of the evidence standard rather than beyond
a reasonable doubt standard) was impermissible.
Based on this
understanding, and applying all of the adjustments and departures

associated with its prior guidelines calculation except for a four-
- 2 -
level firearms enhancement, the district court announced a lower

alternative sentence of seventy-nine months.
In Booker, the Supreme Court concluded that even in the
absence
of
Sixth
Amendment
violation,
the
imposition
sentence under the mandatory guidelines regime was error.
of
Booker,
125 S. Ct. at 769; see also United States v. White, 405 F.3d 208,
216-217 (4th Cir. 2005).
This court explained in United States v.
Hughes, 401 F.3d 540, 553 (4th Cir. 2005), that sentencing under a
mandatory regime is a separate class of error . . . distinct from
the Sixth Amendment claim that gave rise to the decision in
Booker.
The court recognized that [t]his error . . . may be
asserted even by defendants whose sentences do not violate the

Sixth Amendment.
In
Such is the case here.
Id.
White,
we
held
that
treating
mandatory was plain error in light of Booker.
the
guidelines
as
Id. at 216-17.
We
declined to presume prejudice, id. at 217-22, holding that the

prejudice inquiry, therefore, is . . . whether after pondering all
that happened without stripping the erroneous action from the
whole, . . . the judgment was . . . substantially swayed by the
error.
omitted).
Id.
at
223
(internal
quotation
marks
and
citations
To make this showing, a defendant must demonstrate,
based on the record, that the treatment of the guidelines as

mandatory caused the district court to impose a longer sentence
than it otherwise would have imposed.
- 3 -
Id. at 224.
Because the
record as whole provide[d] no nonspeculative basis for concluding

that the treatment of the guidelines as mandatory affect[ed] the
district courts selection of the sentence imposed, id. at 223
(quoting Williams v. United States, 503 U.S. 193, 203 (1992)), we
concluded in White that the error did not affect the defendants
substantial rights and affirmed the sentence.
Here,
unlike
in
White,
the
Id. at 225.
district
court
gave
an
alternative sentence of seventy-nine months imprisonment. Because

the alternative sentence is substantially lower than the 115-month
sentence
imposed
by
the
court,
the
record
provides
non-
speculative basis for concluding the treatment of the guidelines as

mandatory affected the district courts selection of the sentence
imposed.
The parties ask that the judgment simply be amended to
impose the alternative seventy-nine month sentence.
district
courts
alternative
sentence
relied
on
However, the
assumptions
inconsistent with the Supreme Courts later decision in Booker, and

the district court noted that if the guidelines were a factor to be
considered in sentencing, as the Court essentially held in Booker,
he could not guess what his sentence would be.
Thus, we decline
the parties request that imposition of the alternative sentence be

directed.
Instead, in deference to the district court, we remand
for resentencing anew.
On remand, the district court should first
determine the appropriate sentencing range under the guidelines,
- 4 -
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 guidelines range, the court should

explain its reasons for imposing a non-guidelines sentence, 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.
In
sum,
we
affirm
Sealocks
conviction,
vacate
his
sentence, and remand for resentencing in accordance with Booker.*

We
dispense
contentions
materials
with
of
oral
the
before
argument
parties
the
court
because
the
are
adequately
and
argument
facts
and
presented
would
not
legal
in
the
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 Sealocks sentencing.
- 5 -

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

November 18, 2005

December 29, 2005

Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.

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

David R. Solomon, GLASER & SOLOMON, L.L.C., Baltimore, Maryland,

Unpublished opinions are not binding precedent in this circuit.

Sealock asserts his case should

be remanded for imposition of the district courts alternative

For the reasons set forth below, we

understanding, and applying all of the adjustments and departures

level firearms enhancement, the district court announced a lower

sentence under the mandatory guidelines regime was error.

This court explained in United States v.

The court recognized that [t]his error . . . may be

asserted even by defendants whose sentences do not violate the

Such is the case here.

mandatory was plain error in light of Booker.

declined to presume prejudice, id. at 217-22, holding that the

To make this showing, a defendant must demonstrate,

based on the record, that the treatment of the guidelines as

record as whole provide[d] no nonspeculative basis for concluding

alternative sentence of seventy-nine months imprisonment. Because

speculative basis for concluding the treatment of the guidelines as

inconsistent with the Supreme Courts later decision in Booker, and

the parties request that imposition of the alternative sentence be

Instead, in deference to the district court, we remand

for resentencing anew.

On remand, the district court should first

determine the appropriate sentencing range under the guidelines,

making all factual findings appropriate for that determination.

sentence falls outside the guidelines range, the court should

The sentence must

be within the statutorily prescribed range and . . . reasonable.

sentence, and remand for resentencing in accordance with Booker.*

Just as we noted in United States v. Hughes, 401 F.3d 540,

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