                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-3950
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Arkansas.
Dexter Ross,                             *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: April 23, 2009
                                 Filed: April 28, 2009 (corrected 4/30/09)
                                  ___________

Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
                         ___________

PER CURIAM.

       Dexter Ross was found guilty by a jury of drug and firearm charges. In a prior
appeal, this court affirmed Ross’s convictions, but remanded for resentencing because
the sentencing judge had improperly suspended part of the sentence. See United
States v. Ross, 487 F.3d 1120, 1121, 1124 (8th Cir. 2007). On remand, the district
court imposed a 96-month prison sentence. Ross appeals, arguing that the district
court was unaware of its full sentencing discretion because the resentencing occurred
before the Supreme Court’s decision in Gall v. United States, 128 S. Ct. 586 (2007).

     At the resentencing hearing, the district court, referring to Ross’s requested 60-
month sentence as a variance of more than 50%, stated that it did not believe such a
variance “would withstand scrutiny under the Eighth Circuit case law.” This court’s
case law at that time included United States v. Claiborne, 439 F.3d 479 (8th Cir.
2006), vacated, 551 U.S. 87 (2007), which held that a sentence outside the Guidelines
range had to be supported by a justification that was proportional to the difference
between the advisory range and the sentence imposed. See id. at 481. The Supreme
Court in Gall rejected this court’s approach of requiring extraordinary circumstances
to justify a sentence outside the Guidelines range and rejected any rigid mathematical
formula that used the percentage of a departure as the standard for determining the
strength of the required justifications. See Gall, 128 S. Ct. at 595. We find that the
district court’s comments suggest it might have granted a larger variance if it had not
felt constrained by this court’s case law, and we do not believe that the government
has shown that the resulting error was harmless. Cf. United States v. Huff, 514 F.3d
818, 820-21 (8th Cir. 2008) (remanding where district court stated, in pre-Gall
sentencing, that it might have imposed lower sentence but for Eighth Circuit precedent
and wished to review sentence if precedent were overturned).

       Accordingly, we vacate Ross’s sentence and remand for resentencing consistent
with this opinion. We express no opinion as to the reasonableness or appropriateness
of the original or revised sentences in this case.
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