                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-3729
                                     ___________

United States of America,              *
                                       *
             Appellee,                 *
                                       * Appeal from the United States
       v.                              * District Court for the
                                       * Eastern District of Missouri.
Arnold Darrell Ball, also known as     *
Kirt Jamall Jackson,                   * [UNPUBLISHED]
                                       *
             Appellant.                *
                                  ___________

                              Submitted: November 15, 2005
                                 Filed: March 8, 2006
                                  ___________

Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
                          ___________

PER CURIAM.

      Arnold Darrell Ball appeals the 188-month sentence the district court imposed
upon his guilty plea to possessing with intent to distribute 500 grams or more of a
cocaine mixture, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). For reversal, Ball
argues that United States v. Booker, 543 U.S. 220 (2005), effectively overruled
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and that the district court
therefore violated the Sixth Amendment in finding that his prior controlled-substance
convictions qualified him for sentencing as a career offender under U.S.S.G. § 4B1.1.
Additionally, Ball asserts a Booker error because, had the district court not treated the
sentencing guidelines as mandatory, he would have received a different sentence.
       Ball’s first argument fails as this court is bound by Almendarez-Torres. See
United States v. Torres-Alvarado, 416 F.3d 808, 810 (8th Cir. 2005) (“[W]e are bound
by Almendarez-Torres until the Supreme Court explicitly overrules it”); see also
United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005) (holding that district
court, and not jury, determines whether prior convictions subject defendant to be
sentenced as career offender), cert. denied, 74 U.S.L.W. 3230 (U.S. Oct. 11, 2005)
(No. 05-6173).

       As to his second argument, however, the district court (understandably)
committed error. Ball, citing Blakely, objected at his sentencing hearing to mandatory
application of the sentencing guidelines. This preserved his Booker claim. See United
States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005), cert. denied, 126 S. Ct. 266 (2005).
Thus, this court reviews for harmless error, with the government bearing the burden
of proof. See United States v. Mendoza-Mesa, 421 F.3d 671, 672–73 (8th Cir. 2005).
Where the error is of nonconstitutional magnitude, "the government is required to
establish that we do not have 'grave doubt' as to whether the error substantially
influenced the outcome of the proceedings." United States v. Haidley, 400 F.3d 642,
645 (8th Cir. 2005).

       In this case, the district court, considering the guidelines mandatory, sentenced
Ball to the 188-month minimum. Nothing in the record suggests the district court
would have imposed the same sentence if it treated the guidelines as advisory. Thus,
this court has grave doubt whether the error was harmless. See United States v. Cullen,
432 F3d 903, 906 (8th Cir. 2006).

      Accordingly, the sentence is vacated, and this case is remanded for
resentencing.
                     ______________________________




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