                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2704
                                   ___________

United States of America,               *
                                        *
      Appellant,                        *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Kenneth Ray Ellis,                      *
                                        *
      Appellee.                         *
                                   ___________

                             Submitted: April 12, 2005
                                Filed: August 9, 2005
                                 ___________

Before COLLOTON, McMILLIAN, and BENTON, Circuit Judges.
                         ___________

BENTON, Circuit Judge.

       Kenneth Ray Ellis appeals his sentence, imposed after he pled guilty to
possessing a destructive device in violation of 26 U.S.C. §§ 5861(d) and 5871. Three
days after the oral announcement of sentence, Ellis moved for resentencing under
Blakely v. Washington, 542 U.S. 296 (2004), attacking the constitutionality of the
United States Sentencing Guidelines and the judicial fact-finding supporting the
enhancements. Before the appeal was filed, the district court denied his motion.
Jurisdiction being proper under 18 U.S.C. § 3742 and 28 U.S.C. 1291, this court
remands for resentencing in accordance with United States v. Booker, __ U.S. __,
125 S.Ct. 738 (2005).
       As to fact-finding, this case does not present a Sixth Amendment violation,
because Ellis admitted the supporting facts by not objecting to the Presentence
Investigation Report (which detailed his convictions, probation, and stipulation of
facts). See United States v. McCully, 407 F.3d 931, 933 (8th Cir. 2005).

       By the plea agreement, Ellis did retain the right to appeal "sentencing issues
which have not been agreed upon or which have not been specifically addressed in
the plea agreement." Thus, he may appeal the district court's use of the guidelines as
mandatory. See United States v. Lea, 400 F.3d 1115, 1116 (8th Cir. 2005). Applying
the guidelines as mandatory is (understandable) error. See United States v. Pirani,
406 F.3d 543, 553 (8th Cir. 2005) (en banc).

       The standard of review for this error depends on whether Ellis preserved his
objection in the district court. Errors not properly preserved are reviewed only for
plain error. Id. at 549; FED R. CRIM. P. 52(b).

       Criminal Rule 35(a) states: "Within 7 days after sentencing, the court may
correct a sentence that resulted from arithmetical, technical, or other clear error." FED
R. CRIM. P. 35(a). Applying the guidelines as mandatory is a "clear" error. Pirani,
406 F.3d at 550. Ellis's motion was timely and clearly stated the objection, giving the
trial court an opportunity to correct the error. See United States v. Williams, 994
F.2d 1287, 1294 (8th Cir. 1993); FED R. CRIM. P. 51(b). True, the standard of
review for the district court's decision on a Rule 35 motion is for abuse of discretion.
See United States v. Gruenberg, 53 F.3d 214, 215 (8th Cir. 1995). However, a district
court by definition abuses its discretion when it makes a clear error. See Koon v.
United States, 518 U.S. 81, 100 (1996). Ellis thus preserved his objection to the
mandatory application of the guidelines.

      In order for this error to be disregarded, the government has the burden to
prove that the error was harmless. See Pirani, 406 F.3d at 550. This requires the

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government to show that the error did not affect Ellis's substantial rights. See United
States v. Haidley, 400 F.3d 642, 644 (8th Cir. 2005). The government must
demonstrate that the district court would have imposed the same sentence if it applied
the guidelines as advisory. See United States v. Garcia, 406 F.3d 527, 529 (8th Cir.
2005); Haidley, 400 F.3d at 645.

       As in Garcia and Haidley, the district court here sentenced Ellis at the low end
of the guideline range. See Garcia, 406 F.3d at 529; Haidley, 400 F.3d at 645. As
in Haidley, the plea agreement here required the government "to recommend a
sentence at the low end of the applicable guideline range" (which it did). However,
the plea agreement here also states that if the court "imposes a sentence which
defendant does not like or agree with, he will not be permitted to withdraw his plea
of guilty." Nothing in the brief, perfunctory record suggests that the sentence would
be the same if the guidelines were advisory. See United States v. Thompson, 408
F.3d 994, 998 (8th Cir. 2005); United States v. Marcussen, 403 F.3d 982, 985 (8th
Cir. 2005).

       Because there is no Sixth Amendment violation in this case – thus no error of
constitutional magnitude – the government is required to establish that this court does
not have "grave doubt" whether the error substantially influenced the outcome of the
proceedings. Kotteakos v. United States, 328 U.S. 750, 764-65 (1946); United
States v. White, 408 F.3d 399, 403 (8th Cir. 2005); United States v. Barnett, 410 F.3d
1048, 1052 (8th Cir. 2005); United States v. Storer, __ F.3d __, 2005 WL 1528785
at *3 (8th Cir. 2005); United States v. Bruce, __ F.3d __, 2005 WL 1569461 at *1
(8th Cir. 2005). Cf. Haidley, 400 F.3d at 645; Garcia, 406 F.3d at 529 n.2; United
States v. Galaviz, __ F.3d __ n.1, 2005 WL 1773792 at *2 n.1 (2005); United States
v. Archuleta, 412 F.3d 1003, __ (8th Cir. 2005) (applying "reasonable doubt"
standard, on the assumption that the sentence violated the Sixth Amendment).




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      As this court has a grave doubt that the error did not substantially influence the
sentence in this case, the sentence is reversed, and the case remanded for
resentencing.
                 ______________________________________




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