                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                          Submitted November 10, 2005*
                           Decided November 15, 2005

                                      Before

                    Hon. MICHAEL S. KANNE, Circuit Judge

                    Hon. TERENCE T. EVANS, Circuit Judge

                    Hon. DIANE S. SYKES, Circuit Judge

No. 04-4306

UNITED STATES OF AMERICA,                    Appeal from the United States District
    Plaintiff-Appellee,                      Court for the Western District of Wisconsin

      v.                                     No. 04-CR-79-C-01

AARON D. HUNTER,                             Barbara B. Crabb,
    Defendant-Appellant.                     Chief Judge.


                                    ORDER

       Aaron Hunter pleaded guilty to one count of distributing a controlled
substance, 21 U.S.C. § 841(a)(1), after he sold cocaine base to a confidential
informant. The informant asked to purchase three “eight balls” of crack; Hunter
accepted $450 in exchange for 15 small baggies containing what a chemist
determined to be collectively 6.17 grams of “cocaine base.” The transaction was part
of a series of controlled buys, and in his plea agreement Hunter stipulated that the
government could prove beyond a reasonable doubt that the entire course of conduct
involved 17.57 grams of “cocaine base.” The agreement also identifies 40 years as

      *
        After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-4306                                                                       Page 2

the maximum possible prison term; no statutory provision is cited, but 40 years is
the highest penalty prescribed by § 841(b)(1)(B) for offenses involving 5 or more
grams of cocaine base in its crack form, see 21 U.S.C. § 841(b)(1)(B); United States
v. Edwards, 397 F.3d 570 (7th Cir. 2005) (explaining that “cocaine base” when used
in § 841(b) means crack). Hunter qualified as a career offender, see U.S.S.G.
§ 4B1.1, and in applying that guideline the district court set the base offense level
at 34 on the understanding that 40 years was the statutory maximum, see id.
§ 4B1.1(b)(A) (setting base offense level at 34 for career offender if offense of
conviction is punishable by imprisonment for 25 years or more). A downward
adjustment for acceptance of responsibility reduced Hunter’s total offense level to
32, which coupled with his Category VI criminal history resulted in a guideline
range of 210 to 262 months. The district court sentenced Hunter to 210 months’
incarceration.

       Hunter appeals his sentence. Relying on Edwards, 397 F.3d at 575, he
argues that the government did not meet its burden of showing that the “cocaine
base” he possessed was actually crack, and so the statutory maximum should have
been 20 years under the default provision § 841(b)(1)(C), not 40 years under
§ 841(b)(1)(B). The point might seem academic because Hunter did not receive a
sentence greater than 20 years, but in fact his guideline range would have been
significantly lower if his view of the statutory maximum is correct: the base offense
level for a career offender is 32, not 34, if the offense of conviction is punishable by
at least 20 years but less than 25 years. See U.S.S.G. § 4B1.1(b)(C).

       We decline to decide whether the government submitted sufficient evidence
that Hunter distributed crack rather than another form of cocaine base. Hunter
was sentenced before the Supreme Court decided United States v. Booker, 125 S.
Ct. 738 (2005), and at sentencing he challenged the guidelines on the basis of
Blakely v. Washington, 542 U.S. 296 (2004), and our own decision in United States
v. Booker, 375 F.3d 508 (7th Cir. 2004), aff'd, 125 S.Ct. 738 (2005). This was
enough to preserve for appeal his present argument that the district court imposed
an unlawful sentence by applying the sentencing guidelines as mandatory. See
Booker, 125 S. Ct. at 758; United States v. Schlifer, 403 F.3d 849, 854-55 (7th Cir.
2005) (concluding that Blakely objection was sufficient to preserve a challenge
under Booker to application of guidelines as mandatory); United States v. Burke,
425 F.3d 400, 416-17 (7th Cir. 2005). Hunter requests a full remand for
resentencing, and the government concedes that resentencing is necessary because
it cannot show that the Booker error was harmless. We agree with the parties that
Hunter must be resentenced, and since the government will be free to submit
additional evidence that Hunter dealt crack and not some other form of “cocaine
base,” see United States v. Sumner, 325 F.3d 884, 888-89 (7th Cir. 2003), Hunter’s
argument about the current state of the evidence is premature. Should this
evidentiary question arise again at resentencing, the parties and the district court
No. 04-4306                                                                  Page 3

must take up the question of the applicable burden of proof. See United States v.
Gilliam, 255 F.3d 428, 435-36 (7th Cir. 2001). We VACATE the sentence and
REMAND the case for resentencing.
