                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2738
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the Western
      v.                                * District of Arkansas.
                                        *
Brian Fay Jeremiah,                     *     [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 9, 2005
                                Filed: May 18, 2005
                                 ___________

Before LOKEN, Chief Judge, BEAM, and SMITH, Circuit Judges.
                              ___________

PER CURIAM.

      Jeremiah pled guilty to a violation of 18 U.S.C. § 2425 for using interstate
commerce to transmit information about a minor. At his sentencing hearing, which
occurred five days after the United States Supreme Court decided Blakely v.
Washington, 124 S. Ct. 2531 (2004), Jeremiah challenged the constitutionality of the
sentencing guidelines. The district court rejected the Blakely argument, but
sentenced him to 27 months' imprisonment, the minimum for his offense level.

      Given this court's decisions in United States v. Haidley, 400 F.3d 642 (8th Cir.
2005), and United States v. Garcia, No. 04-3016, 2005 WL 957319 (8th Cir. Apr. 27,
2005), we reverse and remand this case for resentencing. Like the defendants in those
two cases, Jeremiah was sentenced at the low end of his guidelines range, and he has
properly preserved his argument that the sentencing guidelines were unconstitutional.
Under these circumstances, the government bears the burden of showing the
sentencing error–using an unconstitutional mandatory sentencing guidelines
scheme–was harmless. Haidley, 400 F.3d at 644. The government made no such
argument in its brief, and it waived oral argument. Thus, it has not satisfied its
burden of showing that the sentencing error was harmless. Garcia, 2005 WL 957319
at *2 n.3.

      We reverse and remand for resentencing.
                     ______________________________




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