                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3010
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska
James Toelle,                          *
                                       *     [UNPUBLISHED]
            Defendant - Appellant.     *
                                  ___________

                            Submitted: February 15, 2005
                               Filed: March 16, 2005 (Corrected March 17, 2005)
                                   ___________

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

PER CURIAM.

      The defendant in this case was sentenced prior to the United States Supreme
Court decision in United States v. Booker, 125 S.Ct. 738 (2005). The defendant
raised and preserved error as to the constitutionality of the federal sentencing
guidelines at the time of sentencing. The defendant was also sentenced to the
minimum possible sentence under the applicable federal sentencing guidelines.
Accordingly, we cannot say that the error in this case was harmless. We therefore
vacate the sentence and remand for resentencing pursuant to United States v. Booker,
125 S.Ct. 738 (2005). See, United States v. Haidley, No. 04-3312 (filed March 16,
2005).
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