                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3312
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *   Appeal from the United
                                       *   States District Court for the
      v.                               *   District of Nebraska.
                                       *
Christina M. Haidley,                  *     [PUBLISHED]
                                       *
            Defendant - Appellant.     *
                                  __________

                            Submitted: February 15, 2005
                                Filed: March 16, 2005
                                    __________

Before MELLOY, HEANEY, and FAGG, Circuit Judges.
                           __________

MELLOY, Circuit Judge.

      In a pre-Blakely era,1 this would have been a routine federal sentencing
guideline case. The government charged Haidley in a one-count information with
bank embezzlement. The information specifically alleged that the loss amount was
$135,000. Haidley waived indictment and pled guilty to the information. At the plea
proceeding, she specifically stipulated to the $135,000 loss.




      1
       Blakely v. Washington, 124 S.Ct. 2531 (2004).
       The probation office prepared a presentence report. The report determined Ms.
Haidley's guideline sentencing offense level to be a level thirteen, criminal history
category I. The offense level was determined using a base offense level of six under
U.S.S.G. § 2B1.1(a)(2), a ten level increase for a loss amount more than $120,000,
but less than $200,000 under U.S.S.G. § 2B1.1(b)(1)(F), and a three-level reduction
for acceptance of responsibility under U.S.S.G. § 3E.1.1(a) and (b). There were no
other adjustments to the guideline computation. An offense level thirteen, criminal
history category I, resulted in a guideline sentence range of twelve to eighteen
months. The district court sentenced Haidley to the lowest possible sentence under
that applicable range, twelve months and one day.2

      Prior to sentencing, Haidley raised the issue of the constitutionality of the
federal sentencing guidelines, specifically citing Blakely. In her motion to declare
the guidelines unconstitutional Haidley argued:

      In sentencing the defendant in this manner, the court must still adhere
      to the statutory parameters set out by Congress. It may also consider the
      sentencing guidelines as ‘recommendations’ which are instructive but
      no longer binding on the court. However, the court is also free to
      consider any other information it deems relevant to determining the
      appropriate sentence.

The district court rejected Haidley’s challenge and found that the system of
mandatory guidelines remained constitutional. Consequently, we find that Haidley

      2
        The sentence of twelve months and one day is actually a more lenient sentence
than a twelve month sentence because of the federal statute dealing with good time
credit. 18 U.S.C. § 3624(b)(1) provides that a prisoner who is serving a term of
imprisonment of more than one year may receive credit towards service of the
prisoner's sentence of up to fifty-four days per year for good behavior while
incarcerated. Consequently, a person sentenced to a twelve month sentence will serve
twelve months, while a person sentenced to a twelve month and one day sentence will
serve approximately 10½ months.

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preserved error for purposes of our analysis of this case under the recently decided
case of United States v. Booker, 125 S. Ct. 738 (2005).

       We assume for purposes of this opinion that the determination of the
sentencing guideline range in this case does not raise a Sixth Amendment issue as
outlined in Booker, since Haidley stipulated to the loss amount. We also know from
Booker that the remedial interpretation of the Sentencing Act as set forth in Justice
Breyer's majority opinion applies to all cases on direct review. Justice Breyer
cautioned reviewing courts, however, that "in cases not involving a Sixth Amendment
violation, whether resentencing is warranted or whether it will instead be sufficient
to review a sentence for reasonableness may depend upon application of the
harmless-error doctrine." Booker, 125 S.Ct. at 769.

       The issue we face, then, may be framed as follows. Is it harmless error to
sentence a defendant under a mandatory federal sentencing guideline regime, as
opposed to the Booker advisory system, when there is no Sixth Amendment issue as
to the guideline computation and the defendant is sentenced at the bottom of the
federal sentencing guideline range? We conclude that it is not harmless error and that
the present case must be remanded for resentencing under the discretionary system
set out in Booker.

       In determining whether an error is harmless, Federal Rule of Criminal
Procedure 52(a) provides that any error which does not affect substantial rights shall
be disregarded. The burden of proving that an error does not affect substantial rights
is upon the “beneficiary of the error,” here, the government. See Chapman v.
California, 386 U.S. 18, 24 (1967). The standard of proof imposed upon the
government is dependant upon whether the error is of constitutional or
nonconstitutional magnitude . See, e.g., O’Neal v. McAninch, 513 U.S. 432, 437-38
(1995) (discussing the two harmless error standards to apply in cases on direct
review). If the error is of constitutional magnitude, then the government is required

                                         -3-
to prove the error was harmless beyond a reasonable doubt. Chapman, 386 U.S. at
24. As to errors not of constitutional magnitude, a lesser standard applies. In such
cases, the government is required to establish that we do not have “grave doubt” as
to whether the error substantially influenced the outcome of the proceedings.
Kotteakos v. United States, 328 U.S. 750, 764-65 (1946).

      In the present case, we need not determine if the error was of constitutional
magnitude. Even if we apply the less stringent, Kotteakos standard, we do not find
the present error harmless. Applying Kotteakos in this setting, we must decide
whether we have grave doubt as to whether the outcome of the sentencing was
substantially influenced by the error, that is, use of the sentencing guidelines as
though mandatory.

       In determining whether we have such grave doubt, we are influenced
principally by the fact that the district judge made a conscious decision to sentence
the defendant at the bottom of the guideline range. This is not a case in which the
district judge could have gone any lower in imposition of the sentence without
departing under U.S.S.G. § 5K2.0. Although it is not dispositive, we also note that
at sentencing, and in response to the draft presentence report, Haidley pointed out a
number of factors that warranted a bottom of the guideline sentencing, such as the
fact that some of the money embezzled was used for her child’s high medical
expenses. Defense counsel also referenced Haidley’s family situation, which
included two young children at home. Both are factors which can be considered
under 18 U.S.C. § 3553(a)(1) (“the nature and circumstances of the offense and the
history and characteristics of the defendant”). On the basis of the record before us,
we cannot say with any confidence that the district court would not have sentenced
the defendant to a lesser sentence, or imposed different terms of confinement, such
as community correction confinement or home detention, had the district court
realized that the federal sentencing guidelines were only advisory. Consequently, we



                                        -4-
are left with “grave doubt” as to whether the error was harmless, and we must
remand.

       Our court recently decided the case of United States v. Parsons, 396 F.3d 1015
(8th Cir. 2005). In that opinion, the court held that the defendant had expressly
agreed to the guideline computation, just as Haidley had in this case. There, the
district court applied a sentence within the agreed-upon range of thirty to thirty-seven
months. We have carefully considered whether Parsons is controlling on this case.
We have concluded that it is not, for two reasons. First, it is clear that the defendant
in Parsons had not raised the issue of the constitutionality of the federal sentencing
guidelines at the trial level. Consequently, Parsons did not involve harmless error
analysis. Secondly, Parsons was clearly a plain error case. Unlike harmless error,
where the government has the burden of proving the result would not have been
different, in a plain error case the burden is on the defendant to prove that the error
was prejudicial. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 734
(1993). For these reasons, we do not believe that the present decision contravenes the
holding in Parsons.

      The judgment of the district court imposing a twelve month and one day
sentence is reversed and the case is remanded for resentencing. We express no
opinion as to whether the defendant should be resentenced to the same or different
sentence.

HEANEY, Circuit Judge, concurring.

      I concur in the result.
                       ______________________________




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