                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 04-3047
      ___________

United States of America,              *
                                       *
            Plaintiff - Appellant,     *
                                       *
      v.                               *
                                       *
Steven Wayne Raddatz,                  *
                                       *
            Defendant - Appellee.      *

                                           Appeals from the United States
                                           District Court for the
                                           District of Minnesota.
      ___________
                                           [UNPUBLISHED]
      No. 04-2863
      ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      *
      v.                              *
                                      *
Steven Wayne Raddatz,                 *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: March 15, 2005
                                Filed: June 22, 2005
                                    ___________

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

PER CURIAM.

       Steven Wayne Raddatz pleaded guilty to two counts of bank fraud in violation
of 18 U.S.C. § 1344 and two counts of mail fraud in violation of 18 U.S.C. § 1341.
The plea agreement left a number of guideline determinations to the district court,
including the amount of loss, number of victims, role in the offense, and acceptance
of responsibility. The district court held an evidentiary hearing on these matters in
May 2004, and in June 2004 the parties submitted briefs setting forth their respective
positions. The presentence report recommended a final offense level of 25 under the
United States Sentencing Guidelines with a recommended sentencing range of 57 to
71 months.

       A sentencing hearing was set for July 21, 2004. Prior to sentencing, on June
24, 2004, the Supreme Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004).
At sentencing, the district court determined Blakely applied to the Guidelines, but did
not render them wholly unconstitutional. Accordingly, the district court severed
those portions requiring it to enhance the sentence based on judge-found facts. The
district court also concluded it could not decrease Raddatz's sentence by three levels
for acceptance of responsibility, stating it would be unfair to the government to
decrease the offense level in his favor when it could not increase the offense level as
suggested by the government.

     Based on a base offense level of six and a fourteen-level enhancement for a
conceded loss amount between $400,000 and $1 million, the district court found
Raddatz's adjusted offense level was 20, with a sentencing range of 33 to 41 months.



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The district court then imposed a sentence of 36 months imprisonment and restitution
in the amount of $5,503,772.

       Both parties appealed, with Raddatz arguing the district court erred by not
awarding him acceptance of responsibility, and the government arguing the district
court erred by not applying sentencing enhancements because of Blakely.

       Under United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court
found the Guidelines unconstitutional to the extent they enhance a sentence beyond
the maximum sentence permissible based on the facts found by the jury, but the
Supreme Court's remedy was to "make[] the Guidelines effectively advisory" and still
"require[] a sentencing court to consider Guidelines ranges." Id. at 757. Because the
correct calculation of the Guidelines sentencing range continues to be "the critical
starting point for the imposition of a sentence," United States v. Mashek, 406 F.3d
1012, 1016 n.4 (8th Cir. 2005), "[w]e first ask whether the district court correctly
applied the guidelines in determining a guidelines sentencing range," United States
v. Hadash, No. 03-2180, 2005 WL 1250331, at *1 (8th Cir. May 27, 2005). If the
district court failed to calculate properly the Guidelines sentencing range, "we will
remand for resentencing as required by 18 U.S.C. § 3742(f)(1) without reaching the
reasonableness of the resulting sentence in light of § 3553(a)." Id. (quoting Mashek,
406 F.3d at 1017). We will not remand, however, "if the error in application was
harmless, such as when the district court would have imposed the same sentence
absent the error." Id.

      Here, it is apparent the district court failed to calculate properly the Guidelines
sentencing range. Further, we conclude the error was not harmless. While we
express no opinion at this juncture as to the applicability of those Guideline
provisions the district court refused to consider, we note the PSR recommended a
Guidelines sentencing range of 57 to 71 months. Assuming the PSR accurately
calculated the sentencing range, the sentence imposed does not fall within any

                                          -3-
overlap between the correct and incorrect (33 to 41 months) Guidelines ranges. See
United States v. Harris, 390 F.3d 572, 573 (8th Cir. 2004). Additionally, we find
nothing in the record to suggest the district court would have imposed the same
sentence had it properly considered the Guidelines. See Hadish, 2005 WL 1250331,
at *2.

      Accordingly, we vacate the sentence and remand to the district court for
resentencing in accordance with Booker.
                      ______________________________




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