                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                               Nos. 04-3720/04-3939
                                   ___________

United States of America,            *
                                     *
      Appellant/Cross-Appellee,      *
                                     * Appeals from the United States
     v.                              * District Court for the
                                     * Northern District of Iowa.
Serafin Montalvo Davila,             *
                                     *
      Appellee/Cross-Appellant.      *
                                ___________

                              Submitted: June 21, 2005
                                 Filed: August 16, 2005
                                  ___________

Before RILEY, BOWMAN, and BENTON, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       Serafin Montalvo Davila (Davila) pled guilty to possession with intent to
distribute more than 500 grams of methamphetamine and aiding and abetting, in
violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2. The district
court declared the United States Sentencing Guidelines (Guidelines) unconstitutional,
and, finding Davila had absconded while on pretrial release, the district court
sentenced Davila to 156 months’ imprisonment. Both the government and Davila
appeal the sentence imposed by the district court. Because the district court failed to
consider the Guidelines when sentencing Davila, we reverse the district court, vacate
Davila’s sentence, and remand for resentencing in light of United States v. Booker,
125 S. Ct. 738 (2005).

I.      BACKGROUND
        On February 6, 2001, a grand jury in the Northern District of Iowa returned a
one-count indictment charging Davila with possession with intent to distribute more
than 500 grams of methamphetamine. The district court released Davila on an
unsecured bond with pretrial supervision, but Davila absconded from the jurisdiction
to avoid prosecution. The district court issued a warrant for Davila’s arrest and
revoked Davila’s pretrial release because he was a fugitive. On September 19, 2003,
Davila was arrested in Arizona and, on October 14, 2003, returned to Iowa. On
January 29, 2004, Davila pled guilty to the one-count indictment. The United States
Probation Office prepared a Presentence Investigation Report (PSR), which
calculated Davila’s sentencing range under the Guidelines to be 292 to 365 months’
imprisonment. The sentencing range was based on a criminal history category of I
and a total offense level of 40, which included a two-level enhancement for
obstruction of justice arising out of Davila’s fugitive status from August 2001 to
September 2003. The statutory sentencing range for Davila’s conviction is 10 years’
to life imprisonment.

       After Davila pled guilty, the Supreme Court decided Blakely v. Washington,
542 U.S. 296, __, 124 S. Ct. 2531, 2536-38 (2004), which held Washington’s
sentencing system violated the Sixth Amendment because it allowed a court to
enhance a defendant’s sentence based on its findings rather than a jury’s findings.
Armed with Blakely, Davila objected to the PSR’s recommended obstruction of
justice enhancement, arguing the Guidelines are unconstitutional and the
enhancement “cannot constitutionally be determined solely by the Judge.” However,
Davila did not object to paragraph six of the PSR, which explained the events leading
to Davila’s fugitive status:



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      On August 14, 2001, the defendant absconded and a Non-Compliance
      Memorandum was filed. It was determined the defendant and his family
      moved [to Arizona] approximately one week prior to the non-
      compliance memorandum being filed. On August 16, 2001, a petition
      for revocation of pretrial release was filed by the U.S. Attorney’s Office
      and a warrant was issued by [a federal magistrate judge] on the same
      day.

       At Davila’s sentencing hearing on October 1, 2004, the district court held the
Guidelines unconstitutional based on Blakely. Even though the district court held the
Guidelines unconstitutional, the government asked the court “to use the guidelines
as a reference and a guide.” The district court answered, “I’m not actually going to
make any guidelines calculations whatsoever.” Freed from the constraint of the
Guidelines, the district court expressed its desire to sentence Davila to the statutory
minimum, i.e., 120 months’ imprisonment. However, the court considered enhancing
Davila’s sentence for absconding from the jurisdiction while on pretrial release: “It
seems to me that I can consider paragraph 6 in the [PSR] in determining what an
appropriate sentence would be in this case because while the enhancement was
objected to, paragraph 6 wasn’t objected to.” Davila’s attorney responded, “[W]e
didn’t object to paragraph 6 because I don’t know rationally how we could have, [but]
I don’t think [Davila] pled guilty to it at the time of sentencing.” The district court
replied, “But I think [I can sentence Davila based on the facts] he’s admitted to, and
this would be deemed an admission because it was in the [PSR] and wasn’t objected
to.” Taking judicial notice of “paragraph 6 [of the PSR] and the underlying court
documents” detailing Davila’s abscondence, the district court sentenced Davila to 156
months’ imprisonment.

      The government appeals, contending the district court erroneously ignored the
Guidelines when sentencing Davila, resulting in an unreasonable sentence. Davila
cross-appeals, contending the 36-month enhancement over the statutory 120-month



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minimum violated the Sixth Amendment, because the facts supporting the
enhancement were not “made by a jury nor admitted by” him.

II.    DISCUSSION
       After the government filed its initial brief arguing the district court erroneously
held the Guidelines unconstitutional, the Supreme Court extended Blakely’s Sixth
Amendment holding to the Guidelines. Booker, 125 S. Ct. at 755. In doing so, the
Court reaffirmed the core teaching of Apprendi v. New Jersey, 530 U.S. 466, 490
(2000): “Any fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond
a reasonable doubt.” Booker, 125 S. Ct. at 756. However, the Court remedied the
Sixth Amendment violation by excising two provisions of the Sentencing Reform Act
of 1984, which spawned an advisory Guidelines system in which a sentencing court
must “consider Guidelines ranges,” but also “permits the court to tailor the sentence
in light of [the] statutory concerns” embodied in 18 U.S.C. § 3553(a). Id. at 756-57.
Under the advisory Guidelines system, courts of appeal review sentences for
unreasonableness. Id. at 765.

       The government has since filed a reply brief, arguing Davila’s sentence is
unreasonable and urging we remand so the district court can consider the Guidelines
as required under Booker. Davila argues his sentence is reasonable, but contends the
district court violated Booker and Apprendi by making factual findings to enhance
the sentence from 120 to 156 months’ imprisonment. Davila asks that we remand the
case to the district court with instructions to sentence Davila to 120 months’
imprisonment. We conclude this case must be remanded for resentencing.

       Having the benefit of Booker, we, of course, enjoy a better vantage point than
did the district court when sentencing Davila. Applying Booker to Davila’s sentence,
it is clear the district court erroneously rejected the government’s request at

                                           -4-
sentencing “to use the guidelines as a reference and a guide,” because the advisory
Guidelines system explained in Booker requires sentencing courts to consider the
Guidelines. Booker, 125 S. Ct. at 757, 767. Notwithstanding the district court’s error
in refusing to consider the Guidelines, the harmless error rule embodied in Federal
Rule of Criminal Procedure 52(a) applies and states “[a]ny error, defect, irregularity,
or variance that does not affect substantial rights must be disregarded.” Thus, we will
reverse the district court and vacate Davila’s sentence unless Davila can establish the
district court’s error did not affect substantial rights. United States v. Barnett, 410
F.3d 1048, 1052 (8th Cir. 2005) (explaining, in harmless error review, the defendant
bears the burden to prove the error did not affect substantial rights, because the
defendant is the beneficiary of the error). “Because the [district court’s] error is not
of constitutional magnitude, [Davila] must only establish that no ‘grave doubt’ exists
as to whether the district court’s failure to at least consider the Guidelines influenced
his ultimate sentence[].” Id.

       Davila cannot establish the district court’s error was harmless. The PSR set
Davila’s total offense level at 40 and his criminal history category at I. Given these
calculations, the Guidelines advised a range of 292 to 365 months’ imprisonment.
Davila’s sentence was nowhere near this range, and the district court did not provide
a reasoned analysis for sentencing Davila to 156 months’ imprisonment. The district
court expressed its desire to sentence Davila to 120 months’ imprisonment, the
statutory minimum. Without fully understanding the reasons behind the district
court’s discretionary sentence calculated by completely disregarding the Guidelines
and without discussing the section 3553(a) factors, we are left with grave doubt as to
whether the district court would have sentenced Davila to 156 months’ imprisonment
had the court understood its obligation to consider the Guidelines in sentencing
Davila. Thus, we must remand this case to the district court to resentence Davila by
following Booker.




                                          -5-
       Because we are reversing the district court and remanding for resentencing,
Davila’s cross-appeal could be considered moot. However, Davila failed to object
to the factual allegations contained in the PSR, which is deemed an admission for
sentencing purposes. United States v. McCully, 407 F.3d 931, 933 (8th Cir. 2005)
(holding “a fact in the PSR not specifically objected to is admitted for purposes of
Booker”); Fed. R. Crim. P. 32(i)(3)(A) (stating a sentencing court “may accept any
undisputed portion of the [PSR] as a finding of fact”). Thus, the district court did not
violate the Sixth Amendment by enhancing Davila’s sentence because Davila is
deemed to have admitted the facts contained in the PSR that support an obstruction
of justice enhancement for absconding from the jurisdiction during pretrial release.
See, e.g., United States v. Devono, 413 F.3d 804, 805 (8th Cir. 2005) (per curiam)
(holding no Sixth Amendment violation occurred because the defendant admitted the
facts supporting a sentencing enhancement by failing to object to the PSR); McCully,
407 F.3d at 933 (holding defendant’s “Sixth Amendment rights were not violated
because she admitted the facts supporting the enhancements by failing to object to the
PSR”).

III.   CONCLUSION
       For the foregoing reasons, we reverse, vacate Davila’s sentence, and remand
for resentencing.
                       ______________________________




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