                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3015
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      * Appeal from the United States
                                      * District Court for the
     v.                               * Northern District of Iowa
                                      *
Shawn Lee Drinnon,                    *   [UNPUBLISHED]
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: October 25, 2004
                                 Filed: July 20, 2005
                                  ___________

Before BYE, MELLOY and COLLOTON, Circuit Judges
                           ___________

PER CURIAM.

      A jury convicted the defendant of conspiring to distribute 50 grams or more of
a mixture containing methamphetamine. On appeal, the defendant argues that the
court made a number of errors in the computation of his Sentencing Guidelines range.
Also, he raises a Booker1 claim.

      The district court addressed a number of issues at the sentencing hearing.
These included a claim that the district court must apply the standard of proof of


      1
       United States v. Booker, 125 S.Ct 738 (2005).
beyond a reasonable doubt in making sentencing determinations. The defendant also
claimed that the Guidelines range should be limited by the jury’s findings. We now
know, in light of Blakely2 and Booker, that: the district court has an obligation to
determine a Sentencing Guidelines range using a preponderance of the evidence
standard; the resultant Guidelines range is merely advisory; and it serves as one of
the factors for consideration under 18 U.S.C. § 3553. Booker, 125 S.Ct at 764.
Neither Blakely nor Booker changed the method of determining a Guidelines range.
See United States v. Pirani, 406 F.3d 543, 552 n.4 (8th Cir. 2005) (“Nothing in
Booker suggests that sentencing judges are required to find sentence-enhancing facts
beyond a reasonable doubt under the advisory Guidelines regime.”). Consequently,
the district court did not commit error when it used a preponderance of the evidence
standard and refused to be limited by the jury’s finding as to drug quantity in
calculating the Guidelines range. As to the defendant’s specific challenges to the
court’s Guidelines determination, we find them to be without merit and summarily
affirm. See 8th Cir. R. 47B.

       Although the district court did not err in its determination of the applicable
Sentencing Guidelines range, it was error to apply the Guidelines as mandatory, and
there was a Sixth Amendment violation in this case. The defendant objected at
sentencing, argued that the court should be bound by the jury determination, argued
that the court should apply a standard beyond a reasonable doubt, and specifically
cited Apprendi v. New Jersey, 530 U.S. 466 (2000). Under Pirani, 406 F.3d at 549-
50, this is sufficient to preserve “Booker error.” Because the defendant preserved this
error, and the government has not demonstrated the error to be harmless, we are
required under Booker to vacate the sentence and remand for resentencing using the
Booker remedial scheme.




      2
       Blakely v. Washington, 124 S.Ct. 2531 (2004).

                                         -2-
      In conclusion, we reject the defendant's claim that the Sentencing Guidelines
range determination was in any way erroneous, but we vacate the sentence and
remand for resentencing using the Booker remedial scheme.
                      ______________________________




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