                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-3526
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
James E. Steinbrook,                   *
                                       *       [UNPUBLISHED]
            Appellant.                 *
                                  ___________

                             Submitted: April 6, 2005
                                Filed: April 12, 2005
                                 ___________

Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
                         ___________

PER CURIAM.

       James E. Steinbrook pleaded guilty to being a felon in possession of
ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Viewing the
federal Sentencing Guidelines as presumptively constitutional and mandatory, the
district court imposed a Guidelines sentence of 51 months imprisonment and 5 years
supervised release. The court stated, however, that 12 months would be a more
appropriate prison term in this case, if the Guidelines were not mandatory; and
Mr. Steinbrook stated that he was not acquiescing to the constitutionality of the
Guidelines. Mr. Steinbrook now appeals, arguing that it was inappropriate to
sentence him under an unconstitutional Guidelines scheme.
       We conclude that Mr. Steinbrook preserved his challenge to the
constitutionality of the Guidelines, and that it was not harmless error for the district
court to sentence him under a Guidelines scheme the court believed to be mandatory.
See United States v. Booker, 125 S. Ct. 738, 756-57, 769 (2005) (holding mandatory
aspect of federal Sentencing Guidelines was unconstitutional; modifying Sentencing
Reform Act provisions to make Guidelines advisory; in cases not involving Sixth
Amendment violation, whether resentencing is warranted may depend on application
of harmless-error doctrine); United States v. Haidley, 400 F.3d 642, 644-45 (8th Cir.
2005) (sentencing defendant under Guidelines scheme district court believed to be
mandatory rather than advisory was not harmless error, where district court sentenced
defendant to minimum possible sentence under applicable Guidelines range and
appeals court was left with “grave doubt” as to whether district court might have
imposed lesser sentence if it had realized that Guidelines were only advisory;
remanding for resentencing); United States v. Sayre, 400 F.3d 599, 600-601 (8th Cir.
2005) (ultimate inquiry requires determination as to whether error affected substantial
rights, which in most cases means whether error was prejudicial or affected outcome
of district court proceedings).

      Accordingly, we vacate the sentence and remand to the district court so that
Mr. Steinbrook may be resentenced in accordance with Booker.
                     ______________________________




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