UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4604



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


PHILLIP ALAN SULLIVAN, a/k/a C.J.,         a/k/a
Harley Cole Thomason, a/k/a Phillip        Allen
Sullivan,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-45)


Submitted:   June 24, 2005                 Decided:   August 25, 2005


Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Jeffrey B. Welty, Durham, North Carolina, for Appellant.     Anna
Mills Wagoner, United States Attorney, Douglas Cannon, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Phillip     Alan   Sullivan       appeals   the    forty-six   month

sentence imposed after he pled guilty, pursuant to a written plea

agreement, to conspiracy to make, possess, and utter counterfeit

securities, defraud financial institutions, and falsely represent

social security numbers, in violation of 18 U.S.C. § 371 (2000)

(Count 1); aiding and abetting the possession and utterance of a

counterfeit security on September 18, 2003, by Casey Anne Hartig

using the name Betty Faye Bowman, in violation of 18 U.S.C.

§§ 2, 513(a) (2000) (Count 3); and aiding and abetting Hartig’s

false representation of a social security number on August 7, 2003,

in   violation   of   42   U.S.C.A.    §    408(a)(7)(B)     (West   2003),   and

18 U.S.C. § 2 (Count 8).      Citing Blakely v. Washington, 

(2004), and United States v. Booker, 

(2005),

Sullivan asserts on appeal that his sentence is unconstitutional

but does not challenge the validity of his convictions.               We affirm

Sullivan’s convictions, vacate Sullivan’s sentence, and remand for

resentencing.

           Sullivan contends that his sentence is unconstitutional

in light of Blakely and Booker.             Because Sullivan preserved this

issue by objecting to the presentence report based upon Blakely,

this court’s review is de novo.            See United States v. Mackins, 

, 405 (4th Cir. 2003) (“If a defendant has made a timely




                                      - 2 -
and sufficient Apprendi[1] sentencing objection in the trial court,

and so preserved his objection, we review de novo.”).                    When a

defendant preserves a Sixth Amendment error, this court “must

reverse unless [it] find[s] this constitutional error harmless

beyond a reasonable doubt, with the Government bearing the burden

of proving harmlessness.”             

United

States v. White, 

, 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)).

                 In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth 

, 750 (Stevens, J., opinion of the Court).                   The

Court       remedied     the   constitutional     violation     by   making   the

guidelines advisory through the removal of two statutory provisions

that had rendered them mandatory. 

J., opinion

of the Court); 

J., opinion of the Court).

                 Here, the district court sentenced Sullivan under the

mandatory federal sentencing guidelines and applied enhancements

based       on   facts   found   by   a    preponderance   of    the   evidence.

Specifically, the court established a base offense level of six


        1
         Apprendi v. New Jersey, 

(2000).

                                          - 3 -
under U.S. Sentencing Guidelines Manual (“USSG”) § 2B1.1(a)(2) and

§ 2X1.1(a) (2003).         The court also imposed a six-level enhancement

because the loss attributed to Sullivan was more than $30,000 but

less       than    $70,000,     see    USSG    §   2B1.1(b)(1)(D);   a     two-level

enhancement because “the offense otherwise involved sophisticated

means,” USSG § 2B1.1(b)(8)(C); a two-level enhancement because “the

offense involved . . . the unauthorized transfer or use of any

means of identification unlawfully to . . . obtain any other means

of     identification[,]”           USSG   §   2B1.1(b)(9)(C)(i);    a     two-level

enhancement for Sullivan’s role in the offense as a leader or

organizer,         see   USSG   §     3B1.1(c);    and   a   three-level    downward

adjustment for acceptance of responsibility, see USSG § 3E1.1.

These findings yielded a total offense level of fifteen.

                  Our review of the record in this case convinces us that

at least one Sixth Amendment violation occurred with respect to

Sullivan’s sentencing.              Specifically, Sullivan did not admit facts

at the plea hearing to support the two-level enhancement premised

on the sophisticated nature of the offenses.                     As a result, the

district court’s imposition of this enhancement violated the Sixth

Amendment.2




       2
      Just as we noted in United States v. Hughes, 

,
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 Sullivan’s sentencing.

                                           - 4 -
          Accordingly, we affirm Sullivan’s convictions, vacate

Sullivan’s sentence, and remand for resentencing.3     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




     3
      Although the guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the]
[g]uidelines and take them into account when sentencing.” 125 S.
Ct. at 767 (Breyer, J., opinion of the Court).      On remand, the
district court should first determine the appropriate sentencing
range under the guidelines, making all factual findings appropriate
for that determination. 

. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), 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.A. § 3553(c)(2)
(West 2000 & Supp. 2005). 

. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” 

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