                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3832
                                    ___________

United States of America,                *
                                         *
                    Appellee,            * Appeal from the United States
                                         * District Court for the Western
      v.                                 * District of Missouri.
                                         *
Donald Ray Wallace,                      *       [UNPUBLISHED]
                                         *
                    Appellant.           *
                                    ___________

                              Submitted: November 3, 2005
                                 Filed: November 9, 2005
                                  ___________

Before ARNOLD, FAGG, and SMITH, Circuit Judges.
                           ___________

PER CURIAM.

       Donald Ray Wallace appeals the sentence the district court imposed after
Wallace pleaded guilty to distributing 5 or more grams of cocaine base, in violation
of 21 U.S.C. § 841(a)(1). Initially, the district court sentenced Wallace to 110 months
imprisonment, below his 188-255 months Guidelines range. On appeal, this court
remanded to the district court for resentencing within the Guidelines range after
concluding the downward departure was inappropriate. At resentencing, Wallace
raised an objection based on Blakely v. Washington, 524 U.S. 296 (2004). Believing
it was bound to sentence Wallace within the Guidelines range based on our decision,
the district court sentenced Wallace to 188 months in prison.
      In this appeal from resentencing, Wallace cites Blakely and United States v.
Booker, 125 S. Ct. 738 (2005), and argues the district court committed error in
sentencing him under a mandatory Guidelines scheme and in classifying him as a
career offender based on earlier convictions not found by a jury.

       As we have previously held, the Sixth Amendment does not require the fact or
nature of a prior conviction to be proven to a jury beyond a reasonable doubt before
classifying a defendant as a career offender. See United States v. Marcussen, 403
F.3d 982, 984 (8th Cir. 2005), cert. denied , 74 U.S.L.W. 3210 (U.S. Oct. 3, 2005)
(No. 05-5547). It was error, however, to sentence Wallace under a mandatory
Guidelines scheme, and because Wallace preserved the issue, we review to determine
whether the error was harmless. See United States v. Pirani, 406 F.3d 543, 550 (8th
Cir. 2005) (en banc) (Booker error preserved by, inter alia, raising Blakely), cert.
denied, 2005 WL 1811058 (U.S. Oct. 3, 2005); United States v. Haidley, 400 F.3d
642, 644-45 (8th Cir. 2005) (preserved Booker error reviewed for harmless error).
At sentencing, the district court stated it felt bound by the Guidelines, and it believed
the sentence at the bottom of the Guidelines range was “unreasonably punitive”; the
court also announced an alternative, lower sentence it would impose were it not
bound by the Guidelines. These comments demonstrate the error was not harmless.
Accordingly, we remand for resentencing.
                        ______________________________




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