                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 04-3625
      ___________

United States of America,              *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
Scott E. Goodman,                      *
                                       *
           Appellee,                   *
      ___________                          Appeals from the United States
                                           District Court for the District
   Nos. 04-3628/3738                       of Nebraska.
     ___________
                                               [UNPUBLISHED]
United States of America,              *
                                       *
             Appellant/Cross-Appellee, *
                                       *
       v.                              *
                                       *
Leslie D. Fisher,                      *
                                       *
             Appellee/Cross-Appellant. *
                                 ___________

                             Submitted: November 16, 2005
                                Filed: March 21, 2006
                                 ___________

Before ARNOLD, BEAM, and RILEY, Circuit Judges.
                           ___________
PER CURIAM.

       On June 24, 2004, Defendants Scott Goodman and Leslie Fisher pleaded guilty
to conspiracy to manufacture methamphetamine and possession of pseudoephedrine,
knowing or having reason to know that it would be used to manufacture
methamphetamine. No drug quantities were set forth in the indictment and neither
plea involved a plea agreement. The district court sentenced Fisher to sixteen months
on each count to be served concurrently, and three years of supervised release on each
count, also concurrent. Goodman received twelve months and one day on each count
to be served concurrently, and three years of supervised release on each count, also
concurrent. The United States appeals from Fisher's and Goodman's sentences,
imposed by the district court post-Blakely1 and pre-Booker.2

       Given its interpretation of the then-existing jurisprudence, the district court
determined that Goodman and Fisher could only be held responsible for the minimum
amount criminalized under the charging statute (that is possession of less than 2.5
grams of methamphetamine or less than 250 milligrams of actual methamphetamine)
and that the sentences could not be increased based upon any factors not charged in
the indictment and either admitted by the defendant or submitted to a jury beyond a
reasonable doubt. Under this approach, the district court imposed a sentence for each
defendant significantly less than that contemplated by an application of the then-
mandatory sentencing guidelines.

      Because the district court was operating without the benefit of Booker or our
cases applying Booker, we remand to allow the district court the opportunity to
sentence Goodman and Fisher in light of our existing jurisprudence. The district court
is now free to conduct judicial factfinding, using the guidelines as advisory provisions


      1
       542 U.S. 296 (2004).
      2
       543 U.S. 220 (2005).

                                          -2-
in selecting a sentence that is responsive to the facts presented. United States v.
Booker, 543 U.S. 220, 233, 244-47 (2005); United States v. Hawk Wing, 433 F.3d
622, 631 (8th Cir. 2006) (discussing this circuit's three-step sentencing approach);
United States v. Shannon, 414 F.3d 921, 923-24 (8th Cir. 2005) (noting that a district
court should first determine the advisory guideline sentencing range based on the total
offense level, criminal history category, and any appropriate departures from the
guidelines; and then vary from the advisory guideline range, if necessary, based on the
factors set forth in 18 U.S.C. § 3553(a) so long as such variance is reasonable); United
States v. Mashek, 406 F.3d 1012, 1014-15 (8th Cir. 2005) (setting forth this circuit's
post-Booker appellate review).

      For the reasons stated herein we remand for resentencing.3
                       ______________________________




      3
       There is no need, given the above analysis, to address Fisher's cross-appeal
challenging the denial of her motion to declare the guidelines unconstitutional. In light
of Booker, Fisher urges us to affirm her sentence–a request we deny.

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