                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3246
                                   ___________

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                                      * [UNPUBLISHED]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

                             Submitted: June 20, 2005
                                 Filed: June 29, 2005
                                 ____________

Before MURPHY, BYE, and SMITH, Circuit Judges.
                           ____________

PER CURIAM.

        Lori Ann Merryman pled guilty to conspiracy to manufacture and attempt to
manufacture 5 grams or more of actual methamphetamine. Her sentence was imposed
after issuance of the panel opinion in United States v. Pirani, No. 03-2871, (8th Cir.
Aug. 5, 2004), vacated, 406 F.3d 543 (2005) (en banc). The district court, applying
the then existing precedent, refrained from imposing any guideline sentencing
enhancements and sentenced Merryman to 87 months. The government appeals, and
we remand for resentencing.
       The Presentence Investigation Report (PSR) recommended a base offense level
of 26 and enhancements of two levels for obstruction of justice and for reckless
endangerment during flight, for a total offense level of 30. Merryman’s criminal
history was calculated at category II and her resulting sentencing range was 108-135
months. Merryman did not object to the offense level or dispute that she committed
the acts underlying the recommended enhancements, but she made a “conditional
objection” to imposition of any enhancements if “upward adjustments were to be
required to be determined by a jury beyond a reasonable doubt.”

         The parties agreed that without enhancements the sentencing range with a base
level of 26 and criminal history category II would be 70-87 months. They also agreed
that if the federal sentencing guidelines were later determined to be constitutional, the
total offense level with her two enhancements would be 30 with a resulting
sentencing range of 108-135 months. The government asked the court to impose
alternative “pure guidelines” and purely discretionary sentences in the event that
future legal developments warranted them. Defense counsel asked for an alternative
sentence around the low point of the range.

      The district court imposed a sentence of 87 months. It also issued two “stand-
by sentences in the event there are further developments in sentencing law.” If the
court were to be “sentencing her under pure guidelines” as in effect before the panel
decision in Pirani, Merryman’s total offense level would be 30 and her sentence
would be 108 months. If the court had “pure discretion and used the guidelines only
as advisory guidelines, [the] sentence would also be 108 months.”

       Now that the Supreme Court has decided United States v. Booker, 125 S. Ct.
738, 757 (2005), holding the mandatory guidelines unconstitutional and rendering
their use “effectively advisory,” the government requests that Merryman’s sentence
be reversed and the case remanded for imposition of the court’s alternative sentence



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of 108 months. Merryman objects, arguing that the district court did not err under the
governing law at the time of the sentencing.

      The sentencing hearing in this case occurred during a period of uncertainty
about whether the Supreme Court would extend its reasoning in Blakely v.
Washington, 124 S. Ct. 2531 (2004), to the federal sentencing guidelines. It did so
in Booker, but its remedy for the Sixth Amendment infirmities it identified was to
make the federal guidelines advisory and to change the standard of review. Since the
precedent under which the district court sentenced Merryman prohibited sentencing
enhancements on facts not found by a jury or admitted by the defendant even if the
court treated the guidelines as advisory only, the sentence is not consistent with
Booker and must be remanded for imposition of the court’s alternative sentence.

     Accordingly, we reverse the sentence originally imposed and remand for
imposition of the alternative sentence of 108 months.
                       ______________________________




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