                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3427
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the
Kevin Edward Lea,                       * Western District of Missouri.
                                        *
            Appellant.                  *   [PUBLISHED]
                                        *
                                   ___________

                             Submitted: March 7, 2005
                                Filed: March 24, 2005
                                 ___________

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

PER CURIAM.

      Kevin Edward Lea appeals the sentence the district court imposed after he
pleaded guilty to a drug charge. We vacate Lea’s sentence and remand for
resentencing in light of United States v. Booker, 125 S.Ct. 738 (2005).

       Lea pleaded guilty to conspiring to manufacture methamphetamine, in violation
of 21 U.S.C. §§ 841(a)(1) and 846. He entered into a written plea agreement in which
he stipulated to specific offense conduct and acknowledged that these admissions
would be used to calculate his sentence under the federal Sentencing Guidelines.
Before sentencing, however, he objected to being sentenced under the Guidelines,
arguing they were unconstitutional based on the Supreme Court’s then-recent
decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). The district court rejected
Lea’s constitutional challenge and imposed a Guidelines sentence of 110 months
imprisonment and 4 years supervised release. On appeal, Lea renews his
constitutional challenge to the Guidelines.

       In Booker, the Supreme Court held that the mandatory aspect of the federal
Sentencing Guidelines was unconstitutional and modified Sentencing Reform Act
provisions to make the Guidelines advisory. See 125 S. Ct. at 756-57. We disagree
with the government’s position on appeal that because Lea’s Guidelines sentence was
based on facts he admitted or to which he stipulated, he cannot challenge his
sentence. Booker specifically rejected the invitation to leave the Guidelines as
binding in cases that do not involve judicial factfinding. See id. at 768. Because Lea
properly preserved his challenge to the constitutionality of the Guidelines, we
conclude he is entitled to be sentenced under an advisory, rather than mandatory,
Guidelines scheme.

       We also reject the government’s argument that Lea expressly waived, in the
plea agreement, his right to make this constitutional challenge on appeal. Paragraph
15 of the plea agreement expressly allowed Lea to dispute at his sentencing hearing
any issue not “specifically listed” in Paragraph 14. Paragraph 12 gave Lea the right
to appeal any sentencing issues not “specifically addressed” in Paragraph 14. Lea’s
acknowledgment in Paragraph 14 that certain Guidelines provisions would be
applicable to his case did not specifically address the issue of mandatory or advisory
application of the Guidelines. Therefore, the language of the plea agreement cannot
be construed to foreclose Lea’s ability to make this constitutional challenge.

       Finally, we cannot conclude, on the record before us, that it was harmless error
for the district court to sentence Lea under a Guidelines scheme the court believed to
be mandatory. See Booker, 125 S. Ct. at 769 (in cases not involving Sixth

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Amendment violation, whether resentencing is warranted may depend on application
of harmless-error doctrine). We note that the district court sentenced Lea at the low
end of his Guidelines range, and had it not felt bound by the Guidelines, could have
imposed a sentence as low as 60 months. Cf. Williams v. United States, 503 U.S.
193, 202-03 (1992) (when district court misapplies Guidelines, remand is required
unless reviewing court determines, on basis of whole record, that error is harmless,
i.e., error did not affect district court’s selection of sentence imposed); United States
v. Hensley, 36 F.3d 39, 42 (8th Cir. 1994) (where record did not show conclusively
whether district court considered Guidelines policy statements in imposing sentence,
remand was proper because “we cannot be certain the error was harmless”).

       Accordingly, we reverse as to Lea’s sentence and remand to the district court
so that Lea may be resentenced in accordance with Booker.
                      ______________________________




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