United States v. Brian Jeremiah

135 F. App'x 3

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 18, 2005
• Docket: 04-2738
• Status: Unpublished

Opinion

PER CURIAM.

Jeremiah pled guilty to a violation of 18 U.S.C. § 2425 for using interstate commerce to transmit information about a minor. At his sentencing hearing, which occurred five days after the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Jeremiah challenged the constitutionality of the sentencing guidelines. The district court rejected the Blakely argument, but sentenced him to 27 months’ imprisonment, the minimum for his offense level.

Given this court’s decisions in United States v. Haidley, 400 F.3d 642 (8th Cir.2005), and United States v. Garcia, 406 F.3d 527 (8th Cir.2005), we reverse and remand this case for resentencing. Like the defendants in those two cases, Jeremiah was sentenced at the low end of his guidelines range, and he has properly preserved his argument that the sentencing guidelines were unconstitutional. Under these circumstances, the government bears the burden of showing the sentencing error-using an unconstitutional mandatory sentencing guidelines scheme-was harmless. Haidley, 400 F.3d at 644. The government made no such argument in its brief, and it waived oral argument. Thus, it has not satisfied its burden of showing that the sentencing error was harmless. Garcia, 406 F.3d 527, 529 n. 3.

We reverse and remand for resentencing.