                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-4148
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
Donald R. Swank,                       *
                                       *        [UNPUBLISHED]
            Appellant.                 *
                                  ___________

                             Submitted: August 23, 2005
                                Filed: August 30, 2005
                                 ___________

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

PER CURIAM.

       Donald Swank challenges the sentence imposed by the district court upon his
guilty plea to conspiring and attempting to manufacture 5 or more grams of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. For
reversal, he argues under United States v. Booker, 125 S. Ct. 738 (2005), that the
district court erred in sentencing him under a sentencing scheme that is no longer
valid.

      The district court erred in sentencing Mr. Swank under a mandatory Guidelines
regime, see Booker, 125 S. Ct. at 756-57, and Mr. Swank sufficiently preserved the
issue at sentencing by challenging his sentencing range under Blakely v. Washington,
124 S. Ct. 2531 (2004), see United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005)
(en banc), petition for cert. filed, (U.S. July 27, 2005) (No. 05-5547). We thus review
for harmless error. See United States v. Haidley, 400 F.3d 642, 644-45 (8th Cir.
2005).

      We are left with “grave doubt” as to whether the error was harmless: not only
was Mr. Swank sentenced at the bottom of the Guidelines range, see id. at 645
(holding not harmless district court’s error in imposing sentence under mandatory
Guidelines regime where court sentenced defendant to bottom of Guidelines range,
even if no Sixth Amendment issue was present), but the court stated explicitly that
the sentence given was the lowest allowed by law. Accordingly, we remand for
resentencing.
                       ______________________________




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