                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2924
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Calvin Thomas Siems,                     *
                                         *    [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: July 7, 2005
                                 Filed: July 29, 2005
                                  ___________

Before MELLOY, McMILLIAN, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       Calvin Siems appeals the 88-month sentence the district court1 imposed after
he pleaded guilty to distributing a mixture and substance containing
methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Siems’s counsel has moved
to withdraw, and in a brief filed under Anders v. California, 386 U.S. 738 (1967), he
argues that the district court abused its discretion in imposing an excessive sentence.
Siems has filed a pro se supplemental brief, arguing that in sentencing him, the
district court violated Blakely v. Washington, 124 S. Ct. 2531 (2004), by relying upon

      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
drug quantities not charged in the indictment, admitted by him, or proved to a jury,
and that the court also miscalculated his criminal history category and improperly
considered his arrest record. In separately filed motions, Siems asks for new
appellate counsel, various record documents, and additional time to file another brief.

      We consider only the challenge to the length of Siems’s sentence–i.e.,
counsel’s argument that Siems’s sentence is “excessive”--because in his written plea
agreement, Siems expressly waived the right to appeal his sentence on any basis
except for an “upward departure . . . from the [G]uideline range established by the
Court for the offense,” and the record demonstrates the waiver should be enforced.
See United States v. Andis, 333 F.3d 886, 889-91 (8th Cir.) (en banc), cert. denied,
540 U.S. 997 (2003).

      The district court sentenced Siems after the Blakely decision but prior to the
United States Supreme Court decision in United States v. Booker, 125 S.Ct. 738
(2005). The district court determined that the Guidelines were unconstitutional. As
a result, the district court did not make factual findings concerning the objections
lodged by the defendant to the presentence report. The district court did appear to
make certain assumptions concerning what the Guidelines might be, however, we
believe that under our court’s interpretation of the Booker decision, that the district
court was required to either make a determination of the Guideline range before
applying the 18 U.S.C. § 3553(a) factors, or to explain why a Guideline determination
was impractical or impossible. United States v. Haack, 403 F.3d 997 (8th Cir. Iowa,
Apr. 13, 2005). Since we are not able to determine if there was an upward departure
from an appropriately determined Guideline range in this case, it is this court’s
determination that the appeal in this case does not violate the appeal waiver and the
case must be remanded for resentencing.
                       ______________________________




                                         -2-
