                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2930
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the Eastern
      v.                                * District of Missouri.
                                        *
Tyrone Johnson,                         *    [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 9, 2005
                                Filed: May 18, 2005
                                 ___________

Before LOKEN, Chief Judge, BEAM, and SMITH, Circuit Judges.
                              ___________

PER CURIAM.

       Tyrone Johnson pled guilty to distributing five grams or more of cocaine base,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). At sentencing, Johnson objected
to the application of the United States Sentencing Guidelines, arguing under Blakely
v. Washington, 124 S. Ct. 2531 (2004), that the guidelines scheme in its entirety was
unconstitutional. The parties stipulated to the base offense level as well as the
applicable adjustments, establishing a guideline range of thirty-seven to forty-six
months' imprisonment. The district court sentenced Johnson to a term of thirty-seven
months' imprisonment and a four-year term of supervised release.
       Johnson's objection to the guidelines at sentencing sufficiently preserved the
United States v. Booker issue for our review. 125 S. Ct. 738 (2005). In the instant
case we are faced with a situation we've recently addressed: a defendant sentenced
to the low end of the guidelines, who preserves a Booker issue, but who faced no
enhancement based on judge-found facts. See United States v. Garcia, No. 04-3016,
2005 WL 957319 (8th Cir. Apr. 27, 2005); United States v. Haidley, 400 F.3d 642
(8th Cir. 2005). As such, the issue is whether it is "harmless error to sentence a
defendant under a mandatory federal sentencing guideline regime, as opposed to the
Booker advisory system, when there is no Sixth Amendment issue as to the guideline
computation and the defendant is sentenced at the bottom of the federal sentencing
guideline range." Haidley, 400 F.3d at 644.

       Proving harmless error, or that any error does not affect substantial rights, is
a burden that lies with the beneficiary of the error. Here, that is the government. See
Chapman v. California, 386 U.S. 18, 24 (1967). As in Garcia and Haidley, there is
nothing in this record to indicate that Johnson's sentence would have been the same
under advisory guidelines. See United States v. Marcussen, No. 04-2935, 2005 WL
820350 (8th Cir. Apr. 11, 2005) (finding harmless error because the district court set
forth on the record the sentence it would have imposed had the mandatory guidelines
scheme not been in place). Thus, the government has not satisfied its burden of
proving the sentencing error is harmless. Garcia, 2005 WL 957319, at *2.

      We therefore vacate Johnson's sentence and remand for resentencing.
                     ______________________________




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