                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-4172
                                    ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      * Appeal from the United States
                                      * District Court for the
      v.                              * Eastern District of Missouri.
                                      *
Preston McMorris,                     * [UNPUBLISHED]
                                      *
           Defendant - Appellant.     *
                                 ___________

                              Submitted: May 16, 2006
                                 Filed: May 24, 2006
                                  ___________

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

PER CURIAM.

      Preston McMorris appeals his sentence of 115 months, less fourteen months of
time served, for his conviction as a felon in possession of a firearm in violation of 18
U.S.C. § 922(g). We remand for resentencing with instructions.

       McMorris was sentenced in November 2005, for conduct occurring in
December 2003. At oral argument, the parties agreed the district court erred in
applying the 2004 version of United States Sentencing Guideline (U.S.S.G.) § 2A2.1,
pertaining to Attempted Murder.
       Under 18 U.S.C. § 3553(a)(4)(A)(ii), a district court is required to sentence
using the Guidelines in effect at the time of sentencing. As the commentary to
Guideline § 1B1.11 recognizes, “Congress did not believe that the ex post facto clause
would apply to amended sentencing guidelines.” Accordingly, U.S.S.G. § 1B1.11
directs a sentencing court to apply the Guidelines in effect at the time of sentencing
unless the court finds a violation of the Ex Post Facto Clause in Article I § 9 of the
Constitution in so doing. If such a violation is found, the sentencing court is to apply
the Guidelines in effect at the time of the conduct underlying the conviction.

       We have held an ex post facto violation occurs “if the defendant is sentenced
under the Guidelines in effect at the time of sentencing when those Guidelines
produce a sentence harsher than one permitted under the Guidelines in effect at the
time the crime is committed.” United States v. Bell, 991 F.2d 1445, 1452 (8th Cir.
1993); see also United States v. Carter, 410 F.3d 1017, 1027 (8th Cir. 2005) (post-
Booker case). In the instant case, the Attempted Murder Guideline in effect at the
time the offense was committed provided a base offense level of 28 if the successful
offense would have constituted first degree murder, and 22 otherwise. Amendment
663, which became effective November 1, 2004, modified the Attempted Murder
Guideline to increase these base offense levels to 33 and 27, respectively. The district
court applied the Guideline provision as modified by Amendment 663. Because
applying the Guidelines in effect at the time of sentencing could produce a sentence
harsher than a sentence under the Guidelines in effect at the time the offense was
committed, an ex post facto violation occurred. Under Bell and its progeny, the
district court was required to apply the Guidelines in effect at the time the offense was
committed.

      The parties agree the district court’s improper utilization of the 2004 version
of the Guidelines resulted in an incorrect calculation of the appropriate advisory
Guideline range which warrants a remand for resentencing. Because the district court
sentenced McMorris beyond the upper limit of the advisory range under the 2003

                                          -2-
version of the Guidelines, we agree the error is not harmless and remand is
appropriate. See United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005).

      The parties jointly request the district court, at resentencing, to make a finding
regarding McMorris’s mental state to make clear the district court’s basis for applying
the particular Guideline provision and cross-reference. We agree a finding as to
McMorris’s mental state would assist a reviewing court in determining whether the
correct Guideline provision was applied.

      We therefore remand for resentencing and request the district court to make a
finding as to McMorris’s mental state in its resentencing proceedings.
                      ______________________________




                                          -3-
