                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-3242
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *
      v.                                  *      Appeal from the United States
                                          *      District Court, District of
Marzell Deshond Turnbough,                *      Minnesota.
                                          *
             Appellant.                   *
                                          *
                                          *

                                ________________

                          Submitted: September 16, 2005
                              Filed: October 11, 2005
                               ________________

Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

       Marzell Deshond Turnbough (“Turnbough”) pled guilty to one count of
knowingly and intentionally distributing five grams or more of a mixture or substance
containing cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The
district court sentenced him to 110 months’ imprisonment and 5 years’ supervised
release. Turnbough appeals his sentence on the ground that the district court erred
in finding one of his prior convictions to be a crime of violence for purposes of the
Sentencing Guidelines and on the ground that he should be resentenced in light of
United States v. Booker, 125 S. Ct. 738 (2005). For the reasons discussed below, we
vacate Turnbough’s sentence and remand to the district court for resentencing.

I.    BACKGROUND

      By statute, Turnbough’s guilty plea to one count of distribution of five grams
or more of cocaine base carries a mandatory minimum sentence of 60 months and a
maximum sentence of 480 months. 21 U.S.C. § 841(b)(1)(B). As part of his plea
agreement, Turnbough agreed to be sentenced according to the United States
Sentencing Guidelines. The presentence report calculated his guidelines sentencing
range to be 188-235 months.

       Prior to his pre-Booker sentencing hearing, Turnbough raised Blakely v.
Washington, 542 U.S. 296 (2004), to argue that a jury must determine whether his
prior conviction for escape was a crime of violence for purposes of his career-
offender status under U.S.S.G. § 4B1.1. At the sentencing hearing, the district court
overruled this objection and found Turnbough to be a career offender. The district
court also denied his motion for a downward departure for overstated criminal history
under U.S.S.G. § 4A1.3, but granted the Government’s motion for a downward
departure for substantial assistance under § 5K1.1. Applying the guidelines in a
mandatory fashion, the district court imposed a sentence of 110 months’
imprisonment.

II.   DISCUSSION

      On appeal, Turnbough first challenges his status as a career offender under
U.S.S.G. § 4B1.1. We review the district court’s interpretation and application of the
guidelines de novo and its findings of fact for clear error. United States v. Mashek,
406 F.3d 1012, 1016-17 (8th Cir. 2005).



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       “A defendant is a career offender if . . . the instant offense of conviction is a
felony that is either a crime of violence or a controlled substance offense [and] the
defendant has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a). Turnbough challenges only one
of his felony convictions upon which the district court relied: a 1995 conviction for
escape.1

       Turnbough does not dispute that his conviction for escape qualifies as a crime
of violence, see United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001)
(categorizing all walkaway escapes as crimes of violence), but instead argues that
Booker requires that a jury determine beyond a reasonable doubt whether his prior
conviction may be categorized as a crime of violence. We have consistently rejected
the applicability of Booker to the legal determination of whether a prior conviction
may be categorized as a crime of violence. See, e.g., United States v. Marcussen, 403
F.3d 982, 984 (8th Cir. 2005). The categorization of an offense as a crime of violence
is a legal question outside the purview of the Sixth Amendment. United States v.
Camp, 410 F.3d 1042, 1047 (8th Cir. 2005). The sentencing court has the duty to
take notice of a defendant’s criminal history and, as a matter of law, determine
whether any prior conviction is properly categorized as a crime of violence.
Marcussen, 403 F.3d at 984. Accordingly, the district court properly found facts
relating to Turnbough’s criminal history and properly categorized his walkaway
escape as a crime of violence. Nation, 243 F.3d at 472.

      Turnbough then argues that his sentence, pronounced under a mandatory
application of the Sentencing Guidelines, is erroneous under Booker. Turnbough
preserved this issue by making a Blakely objection prior to his sentencing hearing.
United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc), cert. denied, No.


      1
       Turnbough fled from custody after having signed out as part of a volunteer
work crew.
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05-5547 (U.S. Oct. 3, 2005). Therefore, we review his sentence for harmless error.
Id. at 548-49.

       As the beneficiary of a non-constitutional Booker error, “[t]he government is
required to establish that we do not have ‘grave doubt’ as to whether the error
substantially influenced the outcome of the proceedings.” United States v.
Mendoza-Mesa, 421 F.3d 671, 673 (8th Cir. 2005) (citation omitted). Although it is
a close call, we do not believe the Government satisfied its burden in this case. See
United States v. Love, 419 F.3d 825, 829 (8th Cir. 2005) (“Just as we decline to
speculate in the defendant’s favor when conducting plain error review under Booker,
we likewise decline to speculate in the government’s favor when conducting harmless
error review.”) (citation omitted).

       The Government first contends that the district court complied with Booker by
granting the § 5K1.1 motion and departing downward to only 110 months when it
knew it could depart to as few as 60 months. Cf. United States v. Sayre, 400 F.3d
599, 601 (8th Cir. 2005) (recognizing the futility of remanding a sentence for the
application of advisory guidelines where the district court had previously departed
upward); United States v. Brooks, 417 F.3d 982, 985 (8th Cir. 2005) (holding Booker
error harmless because the defendant was sentenced in the middle of his guidelines
range). We agree with the Eleventh Circuit, however, that granting a § 5K1.1 motion
does not render a Booker error harmless because a sentencing court is limited by the
factors identified in § 5K1.1 when determining the extent of the downward departure.
United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005); see also United States
v. Pepper, 412 F.3d 995, 998 (8th Cir. 2005) (“[T]he extent of a downward departure
made pursuant to § 5K1.1 can be based only on assistance-related considerations.”).

       The Government also argues that any Booker error was harmless because the
district court, in determining the extent of the § 5K1.1 departure, considered



                                         -4-
Turnbough’s criminal history,2 an 18 U.S.C. § 3553(a) factor not identified in §
5K1.1. The Government contends that the district court’s explicit consideration of
this § 3553(a) factor demonstrates that the district court considered many § 3553(a)
factors. See Booker, 125 S. Ct. at 764-65 (holding that district courts must sentence
in accordance with the § 3553(a) factors). While consideration of factors beyond
those identified in § 5K1.1 is improper in assessing the extent of a § 5K1.1 departure,
Pepper, 412 F.3d at 998, we are not convinced that the district court’s improper
consideration of Turnbough’s criminal history in departing under § 5K1.1 proves that
the district court would have imposed the same sentence if it had been free to
consider the full range of § 3553(a) factors. Cf. United States v. Bassett, 406 F.3d
526, 527 (8th Cir. 2005) (per curiam) (holding that Booker error was harmless
because sentencing court announced an identical alternative sentence based on “the
use of its discretion after ‘considering all of the factors set forth at 18 U.S.C.§
3553(a)’”) (emphasis added). Therefore, we hold that the Government has not
carried its burden. See, e.g., United States v. Storer, 413 F.3d 918, 923 (8th Cir.
2005) (holding that a Booker error was not harmless because the Government failed
to point to anything in the record that showed the district court would have imposed
the same sentence under an advisory system).

      Accordingly, we vacate Turnbough’s sentence and remand to the district court
for resentencing. However, nothing in this opinion should be construed as an
indication that we think a more lenient sentence is necessary. Based on the record
before us, we simply decline to speculate that the district court would have imposed
the same sentence under an advisory guidelines scheme considering the full range of
§ 3553(a) factors.



      2
         At Turnbough’s sentencing hearing, the district court explained: “[I]n
determining the extent of the downward departure, I admit to being influenced by the
fact that this criminal history is a bit light on the grand scheme of criminal career
offenders. I’m taking that into account.”
                                          -5-
III.   CONCLUSION

       For the reasons set forth above, we vacate Turnbough’s sentence and remand
to the district court for resentencing under an advisory guidelines regime.
                         ______________________________




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