                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1500
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
     v.                                * District Court for the Western
                                       * District of Missouri.
Nathan Allen Huff,                     *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: October 16, 2007
                                Filed: January 30, 2008
                                 ___________

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

BYE, Circuit Judge.

       Nathan Allen Huff appeals the thirty-seven month sentence imposed following
his guilty plea to being a felon in possession of a firearm. Huff argues the district
court improperly applied a presumption of reasonableness to the applicable guidelines
range. We vacate Huff's sentence and remand for resentencing.

                                         I

       On August 29, 2006, Nathan Allen Huff pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 921(g)(1). The presentence
investigation report ("PSR") concluded Huff's advisory guidelines range was 108 to
135 months, based on a total offense level of 20 and a criminal history category of V.
The total offense level of 20 included: (1) a base offense level of 14; (2) a two-level
enhancement under U.S.S.G. § 2K2.1(b)(4) because the firearm Huff possessed had
previously been reported stolen; and (3) a four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6) because Huff possessed the firearm in conjunction with another felony
offense.

       At the sentencing hearing, Huff objected to the four-level enhancement under
U.S.S.G. § 2K2.1(b)(6).1 The district court overruled Huff's objection and found, by
a preponderance of the evidence, Huff had illegally exhibited a firearm, thus
warranting the four-level enhancement. Additionally, Huff moved for a downward
departure under U.S.S.G. § 5K2.10, based on the victim’s contribution to the offense.
The district court granted Huff's motion and gave him a two-level downward
departure. Huff requested an additional downward departure or variance based on his
past history of extraordinary abuse and the way it affected his emotional state at the
time of the offense. The district court declined to grant the departure or variance,
noting current Eighth Circuit law, namely Claiborne v. United States, 439 F.3d 479
(8th Cir. 2006), overruled by Gall v. United States, ___ S.Ct. ___ , 2007 WL 4292116
(U.S. Dec. 10, 2007), precluded a variance.

       After applying a three-level reduction for acceptance of responsibility, the
district court determined Huff's total offense level was 15 and his criminal history
category was V, resulting in a guidelines range of thirty-seven to forty-six months.
The district court then sentenced Huff at the low end of the applicable range to thirty-
seven months.




      1
      Huff did not object to the two-level enhancement under U.S.S.G.
§ 2K2.1(b)(5).

                                          -2-
      This appeal followed. On appeal, Huff challenges the basis for the court’s
decision not to impose a downward variance.

                                          II

       This court reviews a district court's sentence determination under an abuse-of-
discretion standard. The United States Supreme Court recently clarified the scope of
our review:

      [T]he appellate court must first ensure that the district court committed
      no significant procedural error, such as failing to calculate (or
      improperly calculating) the Guidelines range, treating the Guidelines as
      mandatory, failing to consider the § 3553(a) factors, selecting a sentence
      based on clearly erroneous facts, or failing to adequately explain the
      chosen sentence--including an explanation for any deviation from the
      Guidelines range. Assuming that the district court's sentencing decision
      is procedurally sound, the appellate court should then consider the
      substantive reasonableness of the sentence imposed under an
      abuse-of-discretion standard.

Gall, ___ S.Ct. ___ , 2007 WL 4292116, *7. See also Koon v. United States, 518
U.S. 81, 100 (1996) ("The abuse-of-discretion standard includes review to determine
that the discretion was not guided by erroneous legal conclusions.").

       According to Huff, the record demonstrates the district court interpreted this
court’s binding precedent to require application of a presumption of reasonableness
to the applicable guidelines range and to preclude a variance in the absence of
extraordinary circumstances. As the Supreme Court made clear in Rita v. United
States, ___ S.Ct. ___ , 127 S.Ct. 2456 (2007), the presumption of reasonableness is
an appellate presumption and "the sentencing court does not enjoy the benefit of a
legal presumption that the Guidelines sentence should apply." Id. at 2465. See also
United States v. Wilms, 495 F.3d 277, 282 (6th Cir. 2007) (reversing and remanding

                                         -3-
defendant's sentence due to the district court's imposition of a presumption of
reasonableness in violation of Rita); United States v. Foreman, 436 F.3d 638, 644 n.1
(6th Cir. 2006) ("[A] district court's job is not to impose a 'reasonable' sentence.
Rather, a district court's mandate is to impose 'a sentence sufficient, but not greater
than necessary, to comply with the purposes' of section 3553(a)(2). Reasonableness
is the appellate standard of review in judging whether a district court has
accomplished its task.").

         The record in this case makes clear, based on the presumption of
reasonableness, the district court did not believe it had the discretion to vary from the
applicable guidelines range. In denying Huff's request for a variance, the district court
stated: "I have no idea what's going to happen with Claiborne. But given the current
state of the Eighth Circuit, I don't see how I can do a variance." The district court
further explained: "I might have departed more in this case but for the Eighth Circuit
precedent in the Claiborne case. And if, in fact, that case were to be overturned on
appeal, then I would hope that we would have an opportunity to review this sentence
. . . I would have given him less of a sentence if I thought that I had the ability to do
so." Sent. Tr. at 73, 74, 75.

       In light of Rita, the district court's application of a presumption of
reasonableness was an abuse of discretion. The district court imposed the sentence
not as a result of the district court's assessment of the relevant factors and
determination of the minimally adequate sentence, as required by § 3553(a), but as a
direct consequence of the court's incorrect conclusion it was bound by Eighth Circuit
precedent to accord the guidelines range presumptive weight. See Koon, 518 U.S. at
100 ("A district court by definition abuses its discretion when it makes an error of
law.") (citing Cooter & Gell v. Hartmarx Corp. 496 U.S. 384, 403-05 (1990)).




                                          -4-
       Further, we do not believe this error was harmless.2 The government bears the
burden of proving the district court's error was harmless, and must show that no
"grave doubt" exists as to whether the error substantially influenced the outcome of
the proceedings. United States v. Cullen, 432 F.3d 903, 905-06 (8th Cir. 2006)
(citations omitted). The record makes clear had the district court properly exercised
its discretion, it likely would have granted Huff's request for a variance. Sent. Tr. at
73, 74, 75 ("[I]f, in fact, that case were to be overturned on appeal, then I would hope
that we would have an opportunity to review this sentence . . . I would have given him
less of a sentence if I thought that I had the ability to do so."). Given the record, we
conclude the error substantially influenced the outcome of the proceedings and,
therefore, was not harmless.

                                          IV

       Accordingly, we vacate Huff's sentence and remand for resentencing consistent
with this opinion.
                      ______________________________




      2
       We find, and the government does not disagree, Huff raised a timely objection
during sentencing and, therefore, preserved his challenge.

                                          -5-
