                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3736
                                   ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *   Appeal from the United States
      v.                                 *   District Court for the District
                                         *   of South Dakota.
Joseph D. Andrews,                       *
                                         *      [UNPUBLISHED]
             Appellant.                  *

                                   ___________

                             Submitted: November 1, 2004
                                Filed: June 1, 2005
                                 ___________

Before BYE, BOWMAN, and BEAM, Circuit Judges.
                          ___________

PER CURIAM.

      We rarely review a criminal sentence three times, but Joseph D. Andrews gets
such review today. For a complete recitation of the relevant facts surrounding the
conviction and sentencing of Andrews and his co-defendants, see United States v.
Bradford, 246 F.3d 1107 (8th Cir. 2001), and United States v. Andrews, 339 F.3d 754
(8th Cir. 2003). Today we review Andrews' sentence in light of United States v.
Booker, 125 S. Ct. 738 (2005), which made the Sentencing Guidelines advisory, and
United States v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc), which elucidated the
proper plain error analysis. Based on these cases, we vacate Andrews' sentence once
again and remand for resentencing.
      In 1999, the district court imposed a sentence of 396 months' imprisonment for
Andrews. Because Apprendi, Apprendi v. New Jersey, 530 U.S. 466 (2000), was
handed down during the pendency of Andrews' first appeal, we affirmed Andrews'
conviction but vacated his sentence and remanded for reconsideration in light of
Apprendi. Bradford, 246 F.3d at 1115.

       At Andrews' second sentencing in 2001, the district court imposed a 276-month
sentence, applying section 5G1.2(d) of the Guidelines and our corresponding
guidance in Bradford, 246 F.3d at 1114-15.1 Both parties appealed from that 2001
sentence challenging the application of the Sentencing Guidelines, and Andrews
additionally challenged the Guidelines' constitutionality. While the second appeal
was pending, we overruled Bradford to the extent that Bradford held that section
5G1.2(d) provides sentencing discretion. United States v. Diaz, 296 F.3d 680 (8th
Cir. 2002) (en banc). Thus, we vacated Andrews' sentence a second time and
remanded for sentencing in order for the district court to reinstate Andrews' original
396-month sentence. Andrews, 339 F.3d at 759.

      At Andrews' third sentencing in 2003, the district court heard evidence
regarding Andrews' post-conviction rehabilitative efforts but ultimately ruled that it
was prohibited from considering such efforts under this court's decision and mandate.
Thus, the 2003 sentencing was in essence a "reinstatement" of Andrews' initial




      1
       Section 5G1.2(d) states:

      If the sentence imposed on the count carrying the highest statutory
      maximum is less than the total punishment, then the sentence imposed
      on one or more of the other counts shall run consecutively, but only to
      the extent necessary to produce a combined sentence equal to the total
      punishment. In all other respects, sentences on all counts shall run
      concurrently, except to the extent otherwise required by law.

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sentence. Andrews appeals, arguing that the district court erred in not exercising its
discretion at the 2003 sentencing.

       As luck may have it, and true to form given the history of this case, the
apparently ever-changing landscape of criminal sentencing affects our analysis today.
Under Pirani, we must determine whether Andrews preserved Booker error for our
review. Pirani, 406 F.3d at 549. We review this case for harmless error because
Andrews raised Apprendi and questioned the constitutionality of the Guidelines
before the district court after his first appeal, which was the first time Apprendi was
an issue before the district court. Id. at 550. Thus, the government bears the burden
of proving that the error did not affect the defendant's substantial rights. United
States v. Olano, 507 U.S. 725, 734 (1993). This burden is only met where it is clear
beyond a reasonable doubt that the error did not affect the sentence. United States
v. Haidley, 400 F.3d 642, 644-45 (8th Cir. 2005).

       Here, the district court initially sentenced Andrews under a mandatory
guidelines system based upon a drug quantity that was not charged in the indictment
nor presented to the jury. That finding violated Andrews' Sixth Amendment rights.
Booker, 125 S. Ct. at 756. We must disregard this error, though, if the error was
harmless beyond a reasonable doubt. Fed. R. Crim. P. 52(a), Haidley, 400 F.3d at
644-45. The government has not proven that the error did not affect the outcome of
the district court proceedings. Olano, 507 U.S. at 734.

      Under Booker jurisprudence, the district court has greater discretion than it did
in 1999, 2001, and 2003 when it sentenced Andrews and it will now be able to apply
that discretion when it sentences Andrews a fourth time. We do not suggest,
however, that a lesser sentence is required in this case. "[W]hile not bound to apply
the Guidelines, [the district court] must consult those Guidelines and take them into
account when sentencing." Booker, 125 S. Ct. at 767.



                                         -3-
      Accordingly, we vacate and remand yet again for the district court to
resentence Andrews.
                    ______________________________




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