                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2497
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                     James E. Bowman, also known as Drake

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                           Submitted: March 16, 2018
                              Filed: May 21, 2018
                                 [Unpublished]
                                 ____________

Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.
                        ____________

PER CURIAM.

       After vacating James E. Bowman’s sentence of 319 months’ imprisonment, the
district court resentenced Bowman to a 264-month sentence. Bowman appeals,
arguing that the district court incorrectly calculated his sentence under the U.S.
Sentencing Guidelines (Guidelines or U.S.S.G.) and that his conviction for
brandishing a firearm violates the Sixth Amendment. We vacate Bowman’s sentence
and remand for resentencing.

       On September 23, 2004, a jury convicted Bowman on four counts: (1)
conspiracy to commit an attempted armed bank robbery in violation of 18 U.S.C.
§ 371; (2) attempted armed bank robbery in violation of 18 U.S.C. §§ 2113(a),
2113(d), and 2; (3) use of a firearm during a crime of violence in violation of 18
U.S.C. §§ 924(c) and 2; and (4) being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). When originally sentencing Bowman, the
district court applied a sentencing enhancement for “committ[ing] the instant offense
less than two years after release from imprisonment on a sentence [of at least sixty
days].” U.S.S.G. § 4A1.1(e) (2004). When Bowman was resentenced in 2017 under
the then existing Guidelines, the district court applied the same enhancement even
though it was no longer in effect. The parties agree that the district court erred in
doing so. Without the enhancement, Bowman’s advisory sentencing range for counts
one, two, and four would have been 63 to 78 months’ imprisonment instead of 77 to
96 months’ imprisonment. We conclude that this constituted plain error that seriously
affected the “the fairness, integrity, or public reputation of [the] judicial proceedings.”
United States v. Mulverhill, 833 F.3d 925, 928 (8th Cir. 2016); see also Molina
Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) (“When a defendant is
sentenced under an incorrect Guidelines range . . . the error itself can, and most often
will, be sufficient to show a reasonable probability of a different outcome absent the
error.”).

        Bowman also argues that his sentence violates the Sixth Amendment because
the jury did not conclusively determine that he had brandished a firearm. With
respect to count three, the jury filled out a special verdict form that stated, “We, the
jury, find that during the commission of the [attempted armed robbery], a firearm was
brandished or possessed.” Under 18 U.S.C. § 924(c)(1)(A)(i), a person who uses or
carries a firearm during a crime of violence is subject to a consecutive sentence of

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five years’ imprisonment. If the person brandished a firearm, however, the statute
mandates a consecutive sentence of seven years’ imprisonment. 18 U.S.C.
§ 924(c)(1)(A)(ii). During the resentencing hearing, the district court applied the
seven-year mandatory minimum sentence for brandishing a firearm. In Alleyne v.
United States, 570 U.S. 99, 115-16 (2013), the Supreme Court held that an
“aggravating fact” that produces a higher sentencing range “conclusively indicates
that the fact is an element of a distinct and aggravated crime” that must “be submitted
to the jury and found beyond a reasonable doubt.” Because the language of the
verdict form is ambiguous on whether Bowman brandished or merely possessed the
firearm, we conclude that the district court erred in imposing the seven-year
mandatory minimum sentence.1

      The sentence is vacated, and the case is remanded for resentencing consistent
with this opinion.2
                      ______________________________




      1
        The government argues that Bowman has waived this issue because it was not
raised during his original appeal or his prior motions to vacate his sentence. We
disagree. When a district court conducts a de novo resentencing under § 2255, it
cannot impose what is now an unconstitutional sentence of imprisonment. See United
States v. Tidwell, 827 F.3d 761, 764 (8th Cir. 2016) (explaining that a district court
may resentence a defendant de novo as post-conviction relief under 28 U.S.C. § 2255
and that a defendant is resentenced under the Guidelines in effect at the time of
resentencing, not the Guidelines in effect at the time of the original sentencing); see
also United States v. Gleich, 397 F.3d 608, 615 (8th Cir. 2005) (stating that the
district court must follow a Supreme Court decision issued after defendant’s
sentencing but prior to resentencing on a separate issue).
      2
       We deny Bowman’s motion for stay of the issuance of our opinion and for
leave to file a supplemental brief.

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