                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 05-1836
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the Northern
                                          *       District of Iowa.
Unis Bah,                                 *
                                          *
             Appellant.                   *

                                _________________

                            Submitted: December 13, 2005
                                Filed: March 3, 2006
                                ________________

Before BYE, BEAM and GRUENDER, Circuit Judges.
                         ________________


GRUENDER, Circuit Judge.

        Appellant Unis Bah pled guilty to one count of making a false, fraudulent and
fictitious material statement and representation within the jurisdiction of the
Department of Homeland Security, a department and agency of the United States, in
violation of 18 U.S.C. § 1001. The district court determined an advisory United States
Sentencing Guidelines range of 10 to16 months and imposed a sentence of 30 months’
imprisonment. Bah appeals his sentence. For the reasons discussed below, we
remand to the district court for resentencing.
I.    BACKGROUND

       Bah was charged in a 5-count indictment with crimes related to a scheme to
obtain visas from foreign consulates and embassies in the United States by using false
immigration documents. Bah and his co-defendant, Abdulaziz Bah (“Abdulaziz”),
were arrested by United States Immigration and Customs Enforcement (“ICE”) agents
after driving from Maryland to a Cedar Rapids, Iowa, post office to pick up a package.
The package contained immigration documents that had been submitted to the Irish
Consulate in Chicago, Illinois, in support of three applications for Irish visitor visas.
The documents included successively numbered, purportedly valid passports from the
Republic of Guinea and visa applications supported by fraudulent I-551 cards (Alien
Registration Cards). Bah pled guilty to Count 4 of the indictment, charging him with
making a material false statement in violation of § 1001 when he told an ICE agent
that he did not know the purpose of the trip to Cedar Rapids. The remaining counts
were dismissed at sentencing.

       The Presentence Investigation Report (“PSR”) indicated that the proper offense
guideline for a violation of § 1001 was U.S.S.G. § 2B1.1 (the guideline for sentencing
for fraud and deceit). However, the PSR also recommended that the district court
apply the cross-reference available in subsection (c)(3) of § 2B1.1, which provides
that “[i]f . . . the defendant was convicted under a statute proscribing false, fictitious,
or fraudulent statements or representations generally . . . and . . . the conduct set forth
in the count of conviction establishes an offense specifically covered by another
guideline in Chapter Two (Offense Conduct), apply that other guideline.” The PSR
advised that the cross-reference is available if “the defendant was convicted under
[certain] statute[s],” including § 1001, but neglected to identify the cross-reference’s
second requirement: that the conduct that establishes the offense covered by another
guideline must be set forth in the count of conviction.




                                            -2-
       After hearing testimony from an ICE agent regarding Bah’s involvement in the
fraudulent immigration document scheme, the district court sentenced Bah pursuant
to the more punitive guideline of § 2L2.1 (the sentencing guideline for trafficking in
immigration documents or making a false statement with respect to the immigration
status of another). Without specifically identifying the § 2B1.1 cross-reference, the
district court utilized § 2L2.1 and calculated a base offense level of 11 and a criminal
history category of I. The district court then made a 3-level upward adjustment
pursuant to § 2L2.1(b)(2) (for an offense involving 6 to 24 documents) and a 2-level
downward adjustment for Bah’s acceptance of responsibility pursuant to § 3E1.1(a),
but denied Bah’s request for a minimal-participant downward adjustment pursuant to
§ 3B1.2(a). As a result, the district court determined a total offense level of 12 and
a guidelines range of 10 to 16 months. However, the district court sentenced Bah to
30 months’ imprisonment after considering the facts in light of the 18 U.S.C. §
3553(a) factors and determining that an upward variance was appropriate.

        On appeal, Bah argues that the district court’s application of the cross-
reference was erroneous because the language of § 2B1.1(c)(3) specifically limits the
evidence that the court may consider for purposes of § 2B1.1(c)(3) to “the conduct set
forth in the count of conviction” and that–regardless of other evidence or
stipulations–the count of conviction did not establish that Bah committed a crime
covered under another guideline. In addition, Bah argues that he should have received
a reduction in his total offense level pursuant to § 3B1.2(a) as a minimal- participant
and that his sentence is unreasonable under United States v. Booker, 543 U.S. 220
(2005).1

      1
       Bah also argues that the district court violated the Sixth Amendment by making
findings of fact utilizing a preponderance of the evidence standard when imposing
sentence. However, judicial fact-finding using a preponderance of the evidence
standard is permitted provided that the guidelines are applied in an advisory manner.
United States v. Wade, 435 F.3d 829, 831 (8th Cir. Jan. 13, 2006) (citing United States
v. Vaughn, 410 F.3d 1002, 1004 (8th Cir. 2005)). Because the record establishes that
the guidelines were applied in an advisory manner, the district court did not err on this
                                           -3-
II.      DISCUSSION

       The first step in reviewing Bah’s sentence is to determine whether the district
court’s interpretation and application of the guidelines was correct. United States v.
Mashek, 406 F.3d 1012, 1016-17 (8th Cir. 2005). We review the issue of whether the
district court erred in applying the guidelines de novo. United States v. Mark, 425
F.3d 505, 506 (8th Cir. 2005). “If the sentence was imposed as the result of an
incorrect application of the guidelines, we will remand for resentencing as required
by 18 U.S.C. § 3742(f)(1) without reaching the reasonableness of the resulting
sentence in light of § 3553(a).” Mashek, 406 F.3d at 1017.

       In this case, we must determine whether the district court was correct in
applying § 2L2.1 to Bah. Although the district court heard evidence and argument at
sentencing on the applicability of the § 2B1.1(c)(3) cross-reference, it did not state on
the record or in its written order the basis for its decision to sentence under § 2L2.1.
We note that the § 2B1.1(c)(3) cross-reference is not the only mechanism available
under the guidelines upon which the district court could have relied when sentencing
Bah under § 2L2.1. The district court also could have relied on the cross-reference
under § 1B1.2(a). Therefore, we will consider whether either cross-reference allows
Bah to be sentenced under § 2L2.1.

         A.   The § 2B1.1(c)(3) Cross-Reference

       Bah argues that if the district court applied the § 2B1.1(c)(3) cross-reference to
sentence him under § 2L2.1, the court erred because there was insufficient evidence
to establish that Bah committed an offense punishable under § 2L2.1. If the district
court sentenced Bah pursuant to § 2L2.1, the court must have determined that the
evidence established that Bah had violated either 18 U.S.C. § 1544 (misuse of a


point.
                                           -4-
passport) or 18 U.S.C. § 1546 (fraud and misuse of visas, permits and other
documents), or that he had conspired to commit a violation of § 1544 or § 1546 in
violation of 18 U.S.C. § 371.2 However, Bah maintains that the district court could
not have properly found that Bah committed a violation of § 371, § 1544, or § 1546
because the language of § 2B1.1(c)(3) specifically limits the district court to
considering only the conduct set forth in the count of conviction when determining
whether to apply the cross-reference.

       “When construing the Guidelines, we look first to the plain language, and where
that is unambiguous we need look no further.” United States v. Ellefson, 419 F.3d
859, 865 (8th Cir. 2005) (quoting United States v. Ashley, 342 F.3d 850, 852 (8th Cir.
2003)). Section 2B1.1(c)(3) provides that “[i]f . . . the defendant was convicted under
a statute proscribing false, fictitious, or fraudulent statements or representations
generally . . . and . . . the conduct set forth in the count of conviction establishes an
offense specifically covered by another guideline in Chapter Two (Offense Conduct),
apply that other guideline.” (emphasis added). A plain reading of this unambiguous
language establishes that the district court may look only to “the conduct set forth in
the count of conviction” when determining whether the cross-reference applies. As
such, this cross-reference is applicable “only if the conduct alleged in the count of the
indictment of which the defendant is convicted establishes the elements of another
offense.” United States v. Genao, 343 F.3d 578, 583 (2d Cir. 2003).3


      2
       The applicability of any other offense punishable under § 2L2.1 is not
supported by the facts of this case. See U.S.S.G. § 2L2.1, cmt. statutory provisions;
U.S.S.G. Appx. A.
      3
        Our understanding of the plain meaning of § 2B1.1(c)(3) also is supported by
the language that the United States Sentencing Commission chose to exclude from the
current version of the section. Under the prior version of the guidelines, sentencing
for a violation of § 1001 was governed by the former § 2F1.1, which contained a
similar cross-reference provision that allowed the district court to consider not only
the indictment or information setting forth the count of conviction but also “(a
                                           -5-
      In this case, the count of conviction provides that

             On or about June 17, 2004, in the Northern District of
             Iowa, in a matter within the jurisdiction of Department of
             Homeland Security, United States Immigration and
             Customs Enforcement, a department and agency of the
             United States, the Defendant UNIS BAH, did knowingly
             and willfully make a false, fraudulent, and fictitious
             material statement and representation; that is, defendant
             told an Immigration and Customs Enforcement agent that
             he did not know the purpose of his and Abdulaziz Bah’s
             overnight trip to Iowa from Maryland, when in truth and in
             fact, defendant knew the purpose of the trip was to pick up
             a package at the Post Office in Cedar Rapids, Iowa.

             This in violation of title 18, United States Code, Section
             1001.

Nothing in the count of conviction establishes that Bah’s conduct involved a visa,
passport or other document related to naturalization, citizenship or legal resident
status, a material element necessary to prove a violation of either § 1544 or § 1546.
Nor does the count of conviction establish requisite elements of conspiracy, such as
the existence of a conspiracy or the intent to join a conspiracy under § 371. United
States v. Holloway, 128 F.3d 1254, 1257 (8th Cir. 1997) (citing United States v. Lucht,
18 F.3d 541, 552 (8th Cir. 1994), for the proposition that to establish a defendant’s
participation in a conspiracy, the evidence must show that there was an agreement to
achieve some illegal purpose, that the defendant knew of the agreement and that the



stipulation described in § 1B1.2(a)).” U.S.S.G. § 2F1.1 (deleted), cmt. n.14 (1998).
However, when § 2F1.1 and § 2B1.1 were consolidated, this parenthetical phrase in
§ 2F1.1 was not adopted. Clearly, the Sentencing Commission intended to limit the
application of the cross-reference to situations in which the conduct set forth solely
in the count of conviction establishes another offense.
                                          -6-
defendant knowingly became a party to the conspiracy). Thus, while the ICE agent’s
testimony may have established Bah’s violation of a more serious offense than a
violation of § 1001, the conduct set forth in the count of conviction does not establish
that Bah committed an offense punishable pursuant to § 2L2.1. If the district court
relied on the § 2B1.1(c)(3) cross-reference, it erred in sentencing Bah under § 2L2.1.

      B.     The § 1B1.2(a) Cross-Reference

       Bah assumes on appeal that the district court determined that § 2L2.1 was the
appropriate offense guideline by applying the § 2B1.1(c)(3) cross-reference.
However, as the Government argues, it is possible that the district court made this
determination pursuant instead to the cross-reference in § 1B1.2(a), the first section
to which the district court must turn in applying the guidelines. U.S.S.G. § 1B1.1(a).
Section 1B1.2(a) provides that the district court must “determine the offense guideline
section in Chapter Two (Offense Conduct) applicable to the offense of conviction,”
but contains a cross-reference that allows the district court, under certain
circumstances, to sentence a defendant pursuant to a more severe guideline: “in the
case of a plea agreement (written or made orally on the record) containing a
stipulation that specifically establishes a more serious offense than the offense of
conviction, determine the offense guideline section in Chapter Two applicable to the
stipulated offense.” Id. Thus, the district court could have sentenced Bah under
another offense guideline if Bah stipulated in his plea agreement to facts specifically
establishing a more serious offense and Bah and the Government explicitly agreed that
such stipulation was a stipulation for purposes of § 1B1.2(a).

        Because Bah did not make any additional, relevant stipulations at the
sentencing hearing, we limit our review to the contents of the written stipulation in the
plea agreement. Bah acknowledged in the stipulation in his plea agreement that three
visa applications, supported by the Republic of Guinea passports, were submitted by
an unnamed person to the Irish Consulate in Chicago and that “someone” spoke

                                           -7-
several times by telephone with the consulate about the status of those applications.
He also acknowledged that the visa application in the name of “Unis Conte” was
supported by an altered copy of Bah’s I-551 card and contained Bah’s photograph and
resident alien number. However, in the stipulation Bah specifically disavowed any
personal knowledge as to these facts, agreeing only that they were established by the
evidence.

       Bah further stipulated that he traveled from Maryland to Iowa with Abdulaziz
in a rental car to pick up a package at a post office. He also stipulated that he waited
in the car while Abdulaziz picked up the package containing passports and that law
enforcement found a fraudulent I-551 card on Abdulaziz and a false social security
card in the car, although Bah expressly denied any personal knowledge regarding
these cards. Last, Bah admitted that he gave ICE officers false information about his
knowledge of the purpose of his trip to Iowa and that he knew the purpose of the trip
was to pick up a package that he knew “was to contain immigration documents.”
However, Bah did not admit to knowing that the immigration documents were
fraudulent. While Bah stipulated that “Abdulaziz asked defendant to travel to Iowa
to pick up a package...”, he struck from the stipulation, without objection from the
Government, the modifying phrase “containing documents defendant knew were
connected to immigration fraud.”

      We decline the Government’s invitation to infer Bah’s knowledge or intent with
respect to these stipulated facts, beyond that knowledge or intent to which Bah
admitted in the stipulation. The language of § 1B1.2(a) is clear. The stipulation
purporting to establish a more serious offense than the offense of conviction must
“specifically establish[]” a more serious offense than the offense of conviction.
Moreover, a stipulation which supports two reasonable readings–one reading that
indicates that the defendant committed the more serious offense and one reading that
does not–is not a stipulation which specifically establishes that the defendant



                                          -8-
committed the more serious offense for purposes of § 1B1.2(a). See Braxton v. United
States, 500 U.S. 344, 351 (1991).

       To establish that Bah misused a passport in violation of § 1544, the stipulation
must specifically establish that Bah either used or attempted to use a passport in
violation of the law, or that he furnished, disposed of or delivered a passport to any
person for use by another, other than the person for whose use it was originally issued.
In addition to not specifically establishing that Bah knew of the fraudulent nature of
the passports, the stipulation does not specifically establish any use or attempted use
of the passports. Nor does it specifically establish that either Abdulaziz or Bah gave
the passports to another person. Rather, it appears that Abdulaziz picked up the
passports and shortly thereafter was stopped by law enforcement, who confiscated the
documents.

       Similarly, to establish that Bah committed fraud or misuse related to an
immigration document in violation of § 1546, the stipulation must specifically
establish that Bah possessed, obtained, accepted or received an immigration
document, knowing it to be forged, counterfeited, altered or falsely made. However,
Bah did not admit to knowing that the immigration documents were fraudulent. In
fact, he specifically denied in the stipulation personal knowledge of facts from which
one might be able to infer that the immigration documents were, in fact, fraudulent.
Moreover, Bah deleted from the stipulation the key assertion that he knew that the
documents were connected to immigration fraud. The Government apparently
acquiesced to these disavowals and submitted the stipulation to the district court in
support of the plea agreement. Given this, even though there are facts in the
stipulation that might support the inference of Bah’s knowledge of the fraudulent
nature of the immigration documents, we do not believe that such knowledge has been
specifically established. See Braxton, 500 U.S. at 351 (recognizing that a disavowal
of intent may affect whether a stipulation specifically establishes the commission of
a more serious offense under § 1B1.1(a)).

                                          -9-
       Likewise, the stipulation does not specifically establish the existence of a
conspiracy or that Bah knowingly became a party to any conspiracy. In addition, any
inference that could be drawn to establish these elements would not be the only
reasonable interpretation of the stipulation. As such, the stipulation does not
specifically establish that Bah participated in a conspiracy in violation of § 371 to
commit an offense in violation of § 1544 or § 1546.

      Accordingly, because neither the § 2B1.1(c)(3) cross-reference nor the §
1B1.2(a) cross-reference could have been properly utilized to sentence Bah pursuant
to § 2L2.1, we find that the district court erred in determining the sentencing range
under the guidelines. Bah’s sentencing guideline range should have been calculated
using § 2B1.1.

C.    Harmless Error

       We next consider whether the district court’s use of § 2L2.1 constitutes
harmless error. “The party benefitting from the error has the burden to prove that it
was harmless.” United States v. Gutierrez, Nos. 04-4069 and 05-1068, slip op. at 4
(8th Cir. Feb. 8, 2006) (citing United States v. Red Elk, 426 F.3d 948, 950 (8th Cir.
2005) and United States v. Haidley, 400 F.3d 642, 644 (8th Cir. 2005)). We conclude
that the Government cannot meet this burden and that the error was not harmless.

       The PSR presented an alternative guidelines calculation utilizing § 2B1.1,
which resulted in the same total offense level, 12, as the district court calculated
utilizing only § 2L2.1. However, in reaching this total offense level under § 2B1.1,
the PSR included a 6-level enhancement under § 2B1.1(b)(9) and a 2-level
enhancement under § 2B1.1(b)(10). Perhaps because the district court did not use §
2B1.1 to sentence Bah, it never ruled on his objections to the § 2B1.1 enhancements
recommended by the PSR. As such, there are insufficient findings on which to
determine a sentencing range under § 2B1.1. As Bah correctly argues, without these

                                        -10-
enhancements, the guidelines range would have been 0 to 6 months, rather than 10 to
16 months. Therefore, this is not a situation where the error in calculating the
guidelines range is harmless. See, e.g., Mashek, 406 F.3d at 1017 (noting that “there
may be situations where an error in calculating the appropriate guidelines range is
harmless . . . [for example] where the resulting sentence lies in the overlap between
the correct and incorrect guidelines ranges”).4

        We next consider whether the district court’s pronouncement of an identical
alternative sentence renders the advisory guidelines calculation error harmless. The
district court stated that “if [I] am wrong about the application of [the guidelines]
. . . and the guidelines would advise a sentence that was higher or a sentence that was
lower, this is still my sentence based on all the factors set forth at . . . § 3553(a)(1)
through (7).” We have stated that “[w]hen the guidelines are incorrectly applied, we
remand for resentencing unless the error was harmless, such as when the district court
would have imposed the same sentence absent the error.” United States v. Idriss, No.
04-3886, slip op. at 8 (8th Cir. Feb. 8, 2006). For instance, we have found harmless
error under this rule in a case where the sentencing court determined an identical
alternative guidelines range to be effective in the event its finding on a particular
guidelines adjustment was overruled on appeal. See United States v. Hadash, 408
F.3d 1080, 1082-83 (8th Cir. 2005) (finding the erroneous application of a 6-level
downward adjustment under § 2K2.1(b)(2) to be harmless because the sentencing
court stated that if that adjustment did not apply, it would depart downward an
identical six levels under § 5K2.0). We also have cited the rule but found the standard

      4
        The error in this case may have been harmless had the district court overruled
Bah’s objections to the § 2B1.1(b)(9) and (b)(10) enhancements. Assuming that there
would have been no error in overruling the objections–an issue that is not before the
Court–the guidelines range calculated under § 2B1.1 would have been identical to that
calculated under § 2L2.1. Had this been the scenario, we would proceed to determine
the reasonableness of the ultimate sentence, including the district court’s decision to
vary upward, in light of the correctly calculated guidelines range and the § 3553(a)
factors.
                                          -11-
unsatisfied where the sentencing court did not pronounce an identical alternative
sentence in the event its ruling on a particular guidelines adjustment was overruled.
See, e.g., Idriss, slip op. at 8; United States v. Staples, 410 F.3d 484, 492 (8th Cir.
2005). We have yet to apply such a harmless error rule where the sentencing court
pronounced a blanket identical alternative sentence to cover any potential guidelines
calculation error asserted on appeal without also basing that sentence on an alternative
guidelines calculation.

       Applying the rule to find harmless error in the instant case would create a direct
conflict with our firmly established precedent that “the sentencing court must first
determine the appropriate guidelines sentencing range, since that range does remain
an important factor to be considered in the imposition of a sentence.” United States
v. Haack, 403 F.3d 997, 1002-1003 (8th Cir. 2005); see also Mashek, 406 F.3d at
1016 (“The appropriate guidelines range, though now calculated under an advisory
system, remains the critical starting point for the imposition of a sentence under §
3553(a).”). Where the sentencing court determines an identical alternative guidelines
range in the event its ruling on a particular adjustment is erroneous, as in Hadash, the
sentencing court has calculated the advisory guidelines range underlying the
alternative sentence—it is the original calculated guidelines range without the
challenged enhancement. In such a case, a finding of harmless error based on an
identical alternative sentence presents no conflict with Haack. However, where, as
here, the sentencing court pronounces an identical alternative sentence, not based on
any alternative guidelines calculation but instead intended to cover any and all
potential guidelines calculation errors, the sentencing court effectively has ignored the
requirement of Haack to “first determine the appropriate guidelines sentencing range”
for the alternative sentence. 403 F.3d at 1002-1003. We cannot make a finding of
harmless error where the identical alternative sentence was not based on a correctly
calculated advisory guidelines range. See Mashek, 406 F.3d at 1016 (noting that 18
U.S.C. § 3742(f)(1) requires remand of a sentence based on an incorrectly calculated



                                          -12-
advisory guidelines range regardless of whether the sentence would otherwise be
deemed reasonable).

       Our conclusion is supported by the fact that the absence of an identifiable
advisory guidelines range for the alternative sentence thwarts our review of the
sentence for reasonableness. Because a sentence within the properly calculated
guidelines range is presumptively reasonable, United States v. Lincoln, 413 F.3d 716,
717 (8th Cir. 2005), a correctly calculated guidelines range is the necessary starting
point for assessing the reasonableness of a variance. See United States v. Larrabee,
No. 05-1143, slip op. at 4 (8th Cir. Feb. 3, 2006) (holding that “an extraordinary
upward variance [must] be supported by extraordinary circumstances,” and quoting
United States v. Johnson, 427 F.3d 423, 426-27 (7th Cir. 2005), for the proposition
that “[h]ow compelling that justification must be is proportional to the extent of the
difference between the advisory range and the sentence imposed.”). Therefore, the
district court cannot preemptively announce an alternative sentence under the §
3553(a) factors without first having determined the correct advisory guidelines range.

      Finally, we also do not reach the minimal-participant issue, as any such request
by Bah on remand will have to be evaluated by the district court in light of the offense
of conviction, § 1001, and the applicable offense guideline, § 2B1.1.

III.   CONCLUSION

        We therefore vacate the sentence and remand to the district court for
resentencing consistent with this opinion.




                                          -13-
BYE, Circuit Judge, concurring.

       Although I agree the district court miscalculated the guidelines, I write
separately because I believe the district court's error in calculating the guidelines was
harmless. "An error is harmless if it is clear from the record that the district court
would have given the defendant the same sentence regardless of which guideline
range applied." United States v. Staples, 410 F.3d 484, 492 (8th Cir. 2005). The
nature of the harmless error test does not depend on whether the district court
correctly calculated the guidelines; thus, I disagree with the majority that the harmless
error analysis should only be employed after the district court correctly calculates the
guideline range. If the district court had correctly calculated the guideline range, there
would be no need to engage in this analysis in the first place. See United States v.
Haack, 403 F.3d 997, 1003 (8th Cir. 2005) (noting although "the sentencing court
must first determine the appropriate guidelines sentencing range," cases may exist
"where sentencing factors [are] so complex, or other [18 U.S.C.] § 3553(a) factors
may so predominate, that the determination of a precise sentencing range may not be
necessary or practical."). Additionally, I believe our decision in United States v.
Mashek, 406 F.3d 1012 (8th Cir. 2005), supports, rather than contradicts, the
application of the harmless-error analysis in this case. In Mashek, we analyzed the
defendant's sentence for harmless error despite the district court's incorrect calculation
of the guidelines. Id. at 1020. Unlike the case here, the district court in Mashek did
not announce an identical alternative sentence. Id. The error in Mashek was, thus, not
harmless because we could not say the defendant would have received the same
sentence despite the error. Id.

      In the case at hand, the district court noted it would have sentenced Bah to the
same sentence even if it were "wrong about the application" of the guidelines, and the
"guidelines would advise a sentence that was higher or a sentence that was lower."
Because the district court would have sentenced Bah to thirty months of imprisonment
no matter how his guideline range should have been computed, the error in the initial

                                           -14-
guideline calculation is harmless. See United States v. Hawk Wing, 433 F.3d 622,
633 (8th Cir. 2006) (Loken, C.J., concurring) (noting the harmless-error analysis
should be utilized to prevent otherwise "meaningless remands").

       Despite the presence of a harmless error, I nevertheless concur in the result of
this case as I believe a sentence of thirty months of imprisonment is unreasonable
under the circumstances. Bah's guideline range was calculated, albeit incorrectly, at
ten to sixteen months of imprisonment. This is the exact same range recommended
by the PSR under its alternative calculation. However, even the district court
acknowledged Bah's sentence could be calculated in the zero to six-month range, thus
making him eligible for probation. Even if Bah's correct guideline range should be
ten to sixteen months, I believe a sentence of thirty months is unreasonable because
it represents an upward departure of between 180 percent and 300 percent.

       An extraordinary departure "must be supported by extraordinary
circumstances." United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir. 2005) (quoting
United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005)) (reversing a sixty-eight
percent downward departure). A review of the 18 U.S.C. § 3553(a) factors
demonstrate no such extraordinary circumstances exist here. This case is unlike
United States v. Shannon, 414 F.3d 921, 924 (8th Cir. 2005), in which we upheld a
sentence of fifty-eight months when the defendant had an advisory guideline range of
six to twelve months because the defendant in Shannon, unlike Bah, possessed a
seriously under-represented criminal history. Because neither the "nature and
circumstances of the offense" nor Bah's personal and criminal history warranted such
an extreme upward departure, see 18 U.S.C. § 3553(a)(1), I believe Bah's sentence is
unreasonable. Additionally, I find such an extreme departure does not further the
other Section 3553(a) factors. Thus, I concur.
                        ______________________________




                                         -15-
