                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-1260
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Frederick Allen McCormick,             *
                                       * [UNPUBLISHED]
            Appellant.                 *
                                  ___________

                             Submitted: September 7, 2005
                                Filed: September 12, 2005
                                 ___________

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

PER CURIAM.

      Frederick McCormick challenges the sentence imposed by the district court
upon his guilty plea to possession of pseudoephedrine for the purpose of
manufacturing methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C.
§ 841(c)(2). In a subsequent motion for remand, and on appeal, he argues under
United States v. Booker, 125 S. Ct. 738 (2005), that the district court erred in
sentencing him under a sentencing scheme that is no longer valid.

     The district court erred in sentencing McCormick under a mandatory
Guidelines regime, see Booker, 125 S. Ct. at 756-57, and McCormick sufficiently
preserved the issue at sentencing by challenging his sentencing range under Blakely
v. Washington, 124 S. Ct. 2531 (2004), see United States v. Pirani, 406 F.3d 543, 549
(8th Cir. 2005) (en banc), petition for cert. filed, (U.S. July 27, 2005) (No. 05-5547).
We thus review for harmless error. See United States v. Haidley, 400 F.3d 642, 644-
45 (8th Cir. 2005). The government has the burden to prove that the error was
harmless, and must show that the error did not affect McCormick’s substantial rights
--i.e., that the district court would have imposed the same sentence under advisory
Guidelines. See id.

      We are left with “grave doubt” as to whether the error was harmless:
McCormick was sentenced at the bottom of the Guidelines range, see id. at 645
(holding not harmless district court’s error in imposing sentence under mandatory
Guidelines regime where court sentenced defendant to bottom of Guidelines range,
even if no Sixth Amendment issue was present), and the government has pointed to
nothing in the record that shows the district court would have imposed the same
sentence under an advisory system. Accordingly, we remand for resentencing, and
we deny the pending motion to remand as moot.
                       _____________________________




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