                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                      January 11, 2006
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 04-6301
 v.
                                                  (D.C. No. CR-03-242-T)
                                                        (W.D. Okla.)
 MARION KAYE SMITH,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      Defendant-Appellant Marion Smith argues that the district court violated

his constitutional rights by enhancing his sentence based on facts not admitted by

him nor found by a jury. The government concedes that error occurred and that

the error was not harmless. We therefore REMAND for resentencing.




      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
                                 BACKGROUND

      As a result of a substantial federal and state investigation into the

trafficking of cocaine base in southwest Oklahoma, Smith was indicted along with

four other individuals for a variety of drug and firearm charges. Smith pleaded

guilty to conspiracy to possess with intent to distribute 50 or more grams of

cocaine base and 500 or more grams of cocaine. Smith’s presentence report

recommended a base offense level of 38 based on drug quantity, a two-level

enhancement for possession of a dangerous weapon, and a three-level reduction

for acceptance of responsibility. This total offense level of 37, coupled with a

criminal history category of IV, resulted in a recommended sentence range of 292

to 365 months.

      Before sentencing, Smith filed an objection to the calculation of his base

offense level. Specifically, he argued that, pursuant to the Supreme Court’s

decision in Blakely v. Washington, 542 U.S. 296 (2004), he could not be

sentenced based on a higher drug quantity than the amount to which he pleaded

guilty, because any facts used to enhance a sentence must be admitted by the

defendant or found by a jury beyond a reasonable doubt.

      Smith renewed his Blakely objection at his sentencing hearing. The court

responded by ruling that it would impose a sentence under the Sentencing


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Guidelines, as the issue of the Guidelines’ constitutionality was at that time

pending before the Supreme Court, but that it would also impose an alternative

sentence in the event that the Guidelines were invalidated. The court then

announced a Guidelines sentence of 292 months and, in the event that the

Guidelines were ruled unconstitutional, an alternative sentence of 14 years (168

months).

                                   DISCUSSION

      In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), the

Supreme Court held that “[a]ny 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.” Id. at 756. “As a result, the

Court held that mandatory application of the Guidelines violates the Sixth

Amendment when judge-found facts, other than those of prior convictions, are

employed to enhance a sentence.” United States v. Gonzalez-Huerta, 403 F.3d

727, 731 (10th Cir.) (en banc), cert. denied, 126 S. Ct. 495 (2005).

      Smith’s objection based on Blakely was sufficient to preserve his Booker

argument on appeal, see United States v. Geames, 427 F.3d 1333, 1339 (10th Cir.

2005), and thus we review for harmless error, see United States v. Riccardi, 405

F.3d 852, 874-75 (10th Cir.), cert. denied, 126 S. Ct. 299 (2005). Booker error is


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harmless when the government shows that the error “did not affect the district

court’s selection of the sentence imposed.” Id. at 875 (quotations omitted).

      The government concedes, and we agree, that the district court committed

constitutional Booker error. The government also admits that it cannot show that

the error did not affect the sentence imposed in light of the fact that the district

court announced an alternative sentence lower than the Guideline sentence

actually imposed. We agree that the error was not harmless.

      We therefore REMAND this action to the district court with instructions to

vacate Smith’s sentence and to resentence him in accordance with Booker.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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