                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-3725
                                     ___________

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Mijkia Carl Whittaker,                    * [UNPUBLISHED]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

                              Submitted: January 23, 2006
                                 Filed: April 19, 2006
                                  ___________

Before MELLOY, FAGG, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Mijkia Carl Whittaker appeals his 188-month sentence, imposed after he pled
guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). At sentencing, he objected to his classification as an armed
career criminal, citing Blakely v. Washington, 542 U.S. 296 (2004). The district court
concluded that Blakely does not apply to prior convictions, denied Whittaker's
objection, and sentenced him to 188 months in prison – the bottom of the 188 to 235
month recommended guideline range. Jurisdiction being proper under 18 U.S.C. §
3742(a) and 28 U.S.C. § 1291, this court reverses and remands for resentencing.
       By raising a Blakely challenge at sentencing, Whittaker properly preserved the
issue whether mandatory application of the sentencing guidelines is unconstitutional.
See United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir. 2005) (en banc). While
this case does not present constitutional error because Whittaker did not object to facts
used to calculate his sentence, see United States v. Booker, 542 U.S. 220, 267 (2004),
the district court (understandably) erred by applying the guidelines as mandatory.
Pirani, 406 F.3d at 553. This necessitates harmless-error review, where the
government must establish that the error did not affect Whittaker's substantial rights.
See United States v. Garcia, 406 F.3d 527, 529 (8th Cir. 2005). By this standard, the
government must prove that the district court would have rendered the same sentence
if the guidelines were applied as advisory. See United States v. Haidley, 400 F.3d
642, 644 (8th Cir. 2005).

       As in Haidley and Garcia, the district court here sentenced Whittaker to the
bottom of the recommended guidelines range, and the record does not indicate that the
sentence would have been the same if the guidelines were applied in an advisory
manner. See Haidley, 400 F.3d at 645; Garcia, 406 F.3d at 529. At sentencing, the
district court stated that it was doing "what I can" by sentencing Whittaker at the
bottom of the guidelines range. The government cannot meet its burden to show the
error was harmless.

      The judgment of the district court is reversed, and the case remanded for
resentencing.

                        ______________________________




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