                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-4206
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
v.                                      * District Court for the
                                        * District of Minnesota.
Travis Michael Cullen,                  *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 11, 2005
                                Filed: January 5, 2006
                                 ___________

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

SMITH, Circuit Judge.

       Travis Michael Cullen appeals his 135-month sentence following a guilty plea
to one count of conspiracy to distribute more than 1,000 kilograms of marijuana, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Finding the district court's sentence
under a mandatory Guidelines regime was not harmless error, we remand for
resentencing in accordance with United States v. Booker, ___ U.S. ___, 125 S. Ct. 738
(2005).
                                   I. Background
       In his plea agreement, Cullen agreed to the application of a four-level role
enhancement under § 3B1.1 of the United States Sentencing Guidelines. After Cullen
pleaded guilty, but before he was sentenced, the Supreme Court decided Blakely v.
Washington, 542 U.S. 296 (2004). Thereafter, relying on Blakely, Cullen objected to
the role enhancement, admitting that he signed the plea agreement but denying that
he made a factual admission during his plea. Cullen also challenged the
constitutionality of the Sentencing Guidelines raising the separation of powers
doctrine. Cullen's new arguments prompted the government to move to set aside the
guilty plea on the ground that Cullen breached his plea agreement.

       At sentencing, the district court denied the government's motion to set aside the
guilty plea. The court also found that the four-level role enhancement found in
U.S.S.G. § 3B1.1 applied. The court relied on Cullen's signature on the plea agreement
finding it was "the equivalent of the defendant acknowledging the factual basis that
he was an organizer or leader of criminal activity that involved five or more
participants . . . I read paragraph 11 of the plea agreement as basically a factual
admission of the conduct necessary to give that four points." Sentencing Transcript
at 11. The district court calculated Cullen's total offense level at 31: a base level of 30,
plus four levels for the role enhancement, minus three levels for acceptance of
responsibility. Thus, Cullen's Sentencing Guidelines range was 135 to 168 months
based upon a criminal history category of III and an offense level of 31. The district
court sentenced Cullen at the bottom of the Guidelines range (135 months'
imprisonment), with four years of supervised release. In setting the sentence, the
district court stated that the 135-month sentence "is the low end of the guidelines.
Under the circumstances of this case and based upon what's in front of me, that's as
low a sentence as I can impose." Id. at 14–15. Cullen now appeals his sentence raising
two points.




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                                      II. Discussion
       First, Cullen claims that the district court violated his Sixth Amendment rights
by applying the four-level role enhancement. Cullen argues that his plea agreement
did not include an admission to the facts necessary to support that enhancement. The
record shows Cullen did object to the Presentence Report's ("PSR") recommended role
enhancement, and the government declined to present evidence to prove that
enhancement. However, Cullen does not contend in this appeal that the facts as recited
in the PSR do not support the four-level enhancement, and he did not object to the
factual allegations contained in the PSR. By not objecting to the PSR's factual
allegations, Cullen has admitted them.1 United States v. Ellis, 417 F.3d 931, 933 (8th

      1
       The relevant factual admissions contained in the PSR are as follows:

      15.    Travis Cullen was deemed an organizer or leader of the
             conspiracy that involved five or more participants. Investigative
             materials indicate that he orchestrated quantities of marijuana
             from Los Angeles and San Francisco, California to Minnesota on
             multiple occasions. Investigative materials indicate that Cullen
             established sources for the purchase of marijuana and planned the
             specifics pertaining to transporting the marijuana. He recruited
             others to assist with the transportation and distribution of
             marijuana and reimbursed them financially for their assistance . .
             . . [I]nvestigative materials reveal additional shipments of
             marijuana to Minnesota at Cullen's direction prior to March 23,
             2003 . . . .

      20.    The defendant submitted the following written statement to the
             probation officer regarding the instant offense:

             I have smoked marijuana since my early teens. By age 15
             I was selling to others my age. It allowed me to have free
             marijuana and some additional cash. I sold bigger and
             bigger quantities as time went on. I was able to establish
             credit with several suppliers and turned it into a profitable
             business. In the case before the Court, I set up a transaction

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Cir. 2005). "We have recently held that a fact in a PSR not specifically objected to is
a fact admitted by the defendant for purposes of Booker." United States v. Keller, 413
F.3d 706, 709 (8th Cir. 2005). As a result, there is no Sixth Amendment error in this
case because the facts in the PSR, which are admitted for Booker purposes, support
the district court's imposition of the four-level enhancement for Cullen's role in the
offense.

       Second, Cullen argues that the district court committed procedural error under
Booker by applying the Sentencing Guidelines as mandatory. We agree and reject the
government's contention that Cullen waived, in his plea agreement, his right to make
this challenge on appeal. Cullen's acknowledgment in paragraphs 7 and 8 of the plea
agreement that certain Guidelines provisions would be applicable to his case did not
specifically address the issue of mandatory or advisory application of the Guidelines.
United States v. Lea, 400 F.3d 1115, 1116 (8th Cir. 2005). "Therefore, the language
of the plea agreement cannot be construed to foreclose [Cullen's] ability to make this
constitutional challenge." Id.

      The government contends that Cullen did not argue in the district court that the
Guidelines were unconstitutional based upon Blakely or the Sixth Amendment, nor did
he argue that the Guidelines were merely advisory. Instead, Cullen argued that the
Guidelines were unconstitutional based on a violation of the separation of powers
between the second and third branches. The government states that any error should
be reviewed under a plain error standard. Cullen responds that he did preserve his



             on the west coast and sent Ryan Johnson out to courier the
             marijuana back to sell. He was caught and incriminated me.
             There is no doubt that he was working for me, that I was
             doing something totally illegal and no doubt that I knew
             what I was doing was illegal. I clearly was doing it for the
             money. Ben Schuckert was my partner in this deal and we
             were to split the profits.

                                         -4-
Booker challenge because he alleged Blakely error in the district court and moved to
set aside the Guidelines as unconstitutional. Cullen admits he made a separation of
powers constitutional argument below, but urges that this should not relegate his
claims to only plain error review.

       "Applying the guidelines as mandatory [pre-Booker] is (understandable) error."
Ellis, 417 F.3d at 933. A criminal defendant preserves Booker error if the defendant
below argued Apprendi or Blakely error or that the Guidelines were unconstitutional.
United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005). In this case, Cullen
preserved his Booker challenge by invoking Blakely before the district court. Because
Cullen preserved his objection in the district court, we review for harmless error.

       The government bears the burden of proving that the district court's use of
mandatory Guidelines was harmless error. Ellis, 417 F.3d at 933. Here, because the
error was not of a constitutional magnitude, the government is required to prove no
"grave doubt" exists as to whether the error substantially influenced the outcome of
the proceedings. United States v. Haidley, 400 F.3d 642, 645 (8th Cir. 2005). "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 . . . had the district court
realized that the federal sentencing guidelines were only advisory." Id. Because Cullen
was sentenced at the bottom of the Guidelines range, we are left with "grave doubt"
as to whether the error was harmless, and we remand for resentencing. Id.; Ellis, 417
F.3d at 934; United States v. Burns, 409 F.3d 994, 996 (8th Cir. 2005).

       For the reasons stated above, the sentence is vacated, and this case is remanded
for resentencing.
                        ______________________________




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