                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2856
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Chadwick Wayne Acison,                  *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: April 12, 2005
                                Filed: August 10, 2005
                                 ___________

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

COLLOTON, Circuit Judge.

       Chadwick Wayne Acison pled guilty to manufacturing 50 grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The district
court sentenced Acison to a term of 100 months’ imprisonment. Acison appeals his
sentence, and we vacate and remand for resentencing in light of United States v.
Booker, 125 S. Ct. 738 (2005).

       Acison pled guilty pursuant to a plea agreement in which he stipulated that he
was responsible for the manufacture of 229.03 grams of methamphetamine. Based
on facts admitted in the plea agreement, for purposes of the United States Sentencing
Guidelines, the probation office calculated a base offense level of 28 under USSG
§ 2D1.1, and a total offense level of 25 after a three-level downward adjustment for
acceptance of responsibility. The probation office then calculated a criminal history
category of V, making the applicable guideline sentencing range 100 to 125 months.
Acison did not object to the PSR’s findings of fact. The district court declined to
depart downward from the applicable guideline range, but did sentence Acison at the
bottom of the range. In addition, although Acison had not yet objected to the use of
the mandatory guidelines, the district court announced that “[i]f the guidelines should
be declared unconstitutional, then it’ll be the judgment of the Court that the defendant
be sentenced to imprisonment for a term of 60 months.” (S. Tr. at 4). The court
advised Acison that he could “appeal the guidelines,” and reiterated that if the
guidelines were declared unconstitutional, Acison would receive a 60-month
sentence. (S. Tr. at 6).

       The government argues that Acison, as part of his plea agreement, waived his
right to appeal the sentence based on Booker. In the agreement, Acison agreed that
“his sentence w[ould] be determined and imposed pursuant to the Sentencing
Guidelines,” and that he could appeal only sentencing issues “which ha[d] not been
agreed upon or . . . specifically addressed” in the agreement. We have held, however,
that a plea agreement with virtually identical provisions does not waive the right to
pursue a Booker claim on appeal, United States v. Lea, 400 F.3d 1115, 1116 (8th Cir.
2005) (per curiam), and we therefore reach the same conclusion here.

       In Booker, the Supreme Court held that certain applications of the mandatory
sentencing guidelines violated the Sixth Amendment. As a remedy, the Court
declared the guidelines “effectively advisory” in all cases. The government argues
that there was no error at all in this case, because Acison stipulated to or admitted all
of the facts upon which his sentence was based. If correct, however, this argument
establishes only that the case involves no constitutional error under the Sixth
Amendment. Acison undoubtedly was sentenced in accordance with the mandatory

                                          -2-
sentencing guidelines, rather than the advisory scheme announced in Booker, so his
case at a minimum involves a non-constitutional error. See United States v. Pirani,
406 F.3d 543, 548 (8th Cir. 2005) (en banc).

       The government argues that Acison did not preserve a Booker objection in the
district court, and that we should review the sentence under the relatively deferential
plain-error standard. See Pirani, 406 F.3d at 549-50. This case involves an unusual
situation in which the defendant did not argue the point of error, but the district court
sua sponte raised the constitutionality of the sentencing guidelines. The district court
informed Acison that he would receive a lesser sentence if the guidelines were found
unconstitutional, and that he could appeal that issue.

        Given that the district court indicated it was fully aware of the issue that Acison
now appeals, and that the court obviously had an opportunity to consider and decide
it, there is authority supporting the view that Acison was not required to raise the
issue himself in order to preserve it. See United States v. Martinez-Cigarroa, 44 F.3d
908, 909 n.1 (10th Cir. 1995); see generally United States v. Thornberg, 844 F.3d
573, 575 (8th Cir. 1988) (discussing policies underlying requirement of preserving
error). We need not resolve that question definitively, however, because even under
the plain-error standard, Acison is entitled to resentencing. The district court’s
statement at sentencing – that it would have imposed a term of 60 months rather than
100 months “if the guidelines should be declared unconstitutional” – establishes a
reasonable probability that the court would have imposed a more favorable sentence
if the guidelines were not mandatory. Under our post-Booker precedents, this error
also seriously affects the fairness, integrity, or reputation of judicial proceedings. See
United States v. Rodriguez-Ceballos, 407 F.3d 937, 941-42 (8th Cir. 2005); United
States v. Beltran-Arce, No. 03-4035, 2005 WL 1773794, at * 4 (8th Cir. July 28,
2005).




                                           -3-
       Although the district court previously stated a specific term of imprisonment
that would be imposed “if the guidelines are declared unconstitutional,” the court at
that time did not have the benefit of guidance from Booker, including the requirement
that a district court must consider the advisory guideline range and arrive at a final
sentence that is “reasonable” with regard to 18 U.S.C. § 3553(a). We express no view
on whether any particular sentence would be “reasonable,” and we leave it to the
district court in the first instance to impose sentence in accordance with Booker and
§ 3553(a).

      The judgment of the district court is vacated and the case is remanded for
resentencing.
                    ______________________________




                                         -4-
