                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4085



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DONALD RAY BOSWELL, JR.,

                                            Defendant - Appellant.



Appeal from the United States District      Court for the Middle
District of North Carolina, at Durham.       James A. Beaty, Jr.,
District Judge. (CR-04-239)


Submitted:   April 19, 2006                 Decided:   May 10, 2006


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael A. DeFranco, 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Unpublished opinions are not binding precedent in this circuit.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:

             Donald Ray Boswell, Jr., pled guilty to bank robbery in

violation of 18 U.S.C. § 2113(a) (2000).                      The district court

sentenced    him   as    a   career    offender     to   a    180-month    term   of

imprisonment.          Boswell    appeals     his   sentence,     citing    United

States v. Booker, 543 U.S. 220 (2005).                       We vacate Boswell’s

sentence and remand for resentencing.

             Boswell    contends      that   the    district     court    committed

statutory Booker error by treating the Sentencing Guidelines as

mandatory rather than advisory.              Because Boswell 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 Boswell’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.

2005)   in   ascertaining     a    proper    sentence    for    Boswell    must   be




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construed in Boswell’s favor.   Rodriguez, 433 F.3d at 416.   Thus,

we conclude that Boswell is entitled to be resentenced.1

          Accordingly, we vacate Boswell’s sentence 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 Boswell 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 [Boswell’s]
sentencing.” Hughes, 401 F.3d at 545 n.4.

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