                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 04-4069
      ___________

United States of America,              *
                                       *
            Plaintiff-Appellee,        *
                                       *
      v.                               *
                                       *
                                       *
Mike R. Gutierrez,                     *
                                       *
           Defendant-Appellant.        *
      ___________
                                           Appeals from the United States
      No. 05-1068                          District Court for the District
      ___________                          of Nebraska.

United States of America,            *
                                     *
           Plaintiff-Appellant,      *
                                     *
     v.                              *
                                     *
                                     *
Mike R. Gutierrez,                   *
                                     *
           Defendant-Appellee.       *
                                ___________

                             Submitted: November 17, 2005
                                Filed: February 8, 2006
                                 ___________

Before MURPHY, BOWMAN, and GRUENDER, Circuit Judges.
                                    ___________

MURPHY, Circuit Judge.

       Mike Gutierrez was convicted by a jury of conspiracy to distribute and possess
between 50 and 500 grams of methamphetamine, and he was sentenced to 168 months
in the period between Blakely v. Washington, 542 U.S. 296 (2004), and United States
v Booker, 125 S. Ct. 738 (2005). Although the district court treated the sentencing
guidelines as mandatory, it considered the jury finding of drug quantity to be binding.
It declined to hold Gutierrez responsible for more drugs or to apply a firearm
enhancement, but it enhanced his sentence for obstruction of justice on the assumption
that the guilty verdict meant the jury had found his testimony to be false. Both parties
attribute error to this enhancement. Gutierrez also claims his criminal history score
was miscalculated, and the government argues that the district court erred by refusing
to apply a firearm enhancement or make an independent determination of drug
quantity. We vacate and remand for resentencing.

      On October 23, 2003 Gutierrez was charged with conspiracy to distribute 500
grams or more of a mixture containing methamphetamine, in violation of 21 U.S.C.
§ 846. Evidence was introduced at trial to show that Gutierrez had bought and sold
methamphetamine on numerous occasions over an extended period of time, that he
had exchanged methamphetamine for firearms, and that he had been seen with a
shotgun at the place from which he distributed methamphetamine. Gutierrez testified
and denied being involved in such activities.

      The jury was instructed that in order to find Gutierrez guilty it had to find all
necessary elements of conspiracy as well as the quantity of drugs involved in the
offense, whether it was 0 to 50 grams, 50 to 100 grams, or more than 500 grams of
methamphetamine. The jury found Gutierrez guilty of conspiracy to distribute 50 to
500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1),



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and the district court found under 21 U.S.C. § 851 that he had had a prior felony drug
conviction.

       Sentencing hearings were held on September 1 and December 1, 2004. The
district court stated that the sentencing guidelines were constitutional and that
"[w]hether we like them or not, whether we agree with them or not, we are not free to
depart from them." The court proceeded to sentence Gutierrez under the mandatory
guideline scheme. The government requested the court make its own determination
of the drug quantity attributable to Gutierrez, arguing that Blakely did not apply to the
guidelines and that the Sixth Amendment did not bar a judge from making sentencing
findings. The court considered itself bound by the jury's verdict finding Gutierrez
responsible for 50 to 500 grams of methamphetamine and refused to make an
independent determination. This gave Gutierrez a base offense level of 30.

       The district court then considered the government's request for enhancements
for obstruction of justice and possession of a weapon in connection with the offense.
Gutierrez objected under Blakely to the application of an obstruction of justice
enhancement under USSG § 3C1.1 because it had not been charged in the indictment
or found by the jury, but the court reasoned that the jury had implicitly decided that
Gutierrez had lied under oath while testifying at trial and imposed an obstruction
enhancement. Gutierrez responded to the government's USSG § 2D1.1(b)(1) request
for a firearm enhancement by arguing that it would be improper under Blakely
because the underlying facts had not been found by a jury or admitted by him. The
court agreed with his argument and found his total offense level to be 32.

       Gutierrez's criminal history score had been originally calculated as category VI,
but the district court reduced his criminal history points from thirteen to nine after
learning that the records for two of his prior convictions were not available. Although
Gutierrez objected to the inclusion under USSG § 4A1.1(e) of two points for
committing the instant offense within two years of release from imprisonment, he

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conceded that his criminal history category would remain the same whether he had
seven or nine criminal history points. With a total offense level of 32 and a criminal
history category of IV, his guideline sentencing range was 168 to 210 months. The
court sentenced him at the low point to 168 months.

       The parties appeal the district court's ruling on several grounds. Both sides
agree that the district court committed Booker error by treating the guidelines as
mandatory and by applying an enhancement for obstruction of justice based upon the
jury's general verdict. The government also argues that the district court erred by
refusing to make its own independent determination as to the amount of drugs for
which Gutierrez was accountable and as to whether he possessed a weapon in
connection with his drug offense. On his appeal Gutierrez continues to argue that the
district court erred in including two criminal history points for committing this offense
within two years of release from confinement.

       Since the parties preserved their claims of error under the Sixth Amendment
and Booker, our review is for harmless error. United States v. Archuleta, 412 F.3d
1003, 1005 (8th Cir. 2005). This "requires a determination as to whether the error
affected substantial rights...mean[ing] whether [it] was prejudicial or affected the
outcome of the district court proceedings." United States v. Sayre, 400 F.3d 599, 600-
01 (8th Cir. 2005). The party benefitting from the error has the burden to prove that
it was harmless. United States v. Red Elk, 426 F.3d 948, 950 (8th Cir. 2005); United
States v. Haidley, 400 F.3d 642, 644 (8th Cir. 2005) ("The burden of proving that an
error does not affect substantial rights is upon the 'beneficiary of the error'") (citing
Chapman v. California, 386 U.S. 18, 24 (1967)).

       Both parties complain that the district court erred under the Sixth Amendment
by treating the jury verdict as requiring an enhancement for obstruction of justice, and
we agree. Although Booker followed Blakely and Apprendi v. New Jersey, 530 U.S.
466 (2000), in holding that "[a]ny fact, (other than a prior conviction) which is

                                          -4-
necessary to support a sentence exceeding the maximum authorized by the facts
established by...a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt," 125 S. Ct. at 756, the Court observed in its remedial
opinion that a sentencing enhancement can constitutionally be based on a court
finding so long as the sentencing guidelines are treated as advisory. Id. at 764-65; see
also United States v. Garcia-Gonon, 433 F.3d 587 (8th Cir. 2006); United States v.
Morell, 429 F.3d 1161, 1164 (8th Cir. 2005). The government concedes that the
enhancement for obstruction did not comply with Booker and was not harmless.

       The government complains that the district court also erred by refusing to make
independent determinations as to the quantity of drugs for which Gutierrez was
responsible and as to whether he possessed firearms during his offense. Under
Booker, 125 S. Ct. at 764-67, the sentencing court starts by calculating a guideline
sentence, then considers possible departures and the 18 U.S.C. § 3553(a) factors
before deciding on a sentence either within or outside the advisory guideline range.
United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005). Judicial fact finding
is permitted under the advisory guidelines, see id. at 1003; Morell, 429 F.3d at 1164,
but treating them as mandatory and subject only to fact finding by the jury is Booker
error. See Booker, 543 U.S. at 760, 763; United States v. Thomas, 422 F.3d 665, 669
(8th Cir. 2005).

       As the beneficiary of this Booker error, Gutierrez must show that his sentence
was not substantially influenced by it, Haidley, 400 F.3d at 645, and he has not met
that burden. The presentence report recommended that Gutierrez be held responsible
for at least 1.5 kilograms of methamphetamine with a base offense level of 34, and
enhancements of four levels for obstruction of justice and possession of a firearm.
Had these enhancements been applied, Gutierrez would have had a total offense level
of 38 rather than 32 and a guideline range of 324 - 405 months instead of 168 - 210
months. We thus cannot say that the error did not substantially affect his sentence.
See id. Since the guideline calculations could have been very different if the district

                                          -5-
court had realized that it could constitutionally find Gutierrez accountable for a greater
drug quantity than the jury and for possessing a weapon during his offense, we
conclude the errors were not harmless.

        Finally, Gutierrez challenges the district court's inclusion of two points in his
criminal history score under USSG § 4A1.1(e), for committing this offense within two
years of being released from confinement. He argues that under Blakely the court
could not make the finding necessary to add these points (a finding that he was subject
to increased punishment by reason of prior convictions under 21 U.S.C. § 851(d)).
A prior conviction need not be submitted to a jury or proved beyond a reasonable
doubt for it to be considered for sentencing purposes. Booker, 125 S. Ct. at 756.
Even though Gutierrez objected to the inclusion of these two points, he did not object
to the records of his prior convictions, and he admitted that these additional two points
did not affect his criminal history category. We thus conclude that even if it had been
error to include these two criminal history points, the error would be harmless since
it did not alter the guideline range. See USSG § 5 Sentencing Table.

      Accordingly, we vacate the judgment of the district court and remand for
resentencing consistent with this opinion.
                       ______________________________




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