1

United States v. Booker, 125 S.Ct 738 (2005).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-3015

___________

United States of America, *

*

Plaintiff - Appellee, * Appeal from the United States 

* District Court for the

v. * Northern District of Iowa

*

Shawn Lee Drinnon, * [UNPUBLISHED]

*

Defendant - Appellant. *

___________

Submitted: October 25, 2004

 Filed: July 20, 2005

___________

Before BYE, MELLOY and COLLOTON, Circuit Judges

___________

PER CURIAM.

A jury convicted the defendant of conspiring to distribute 50 grams or more of

a mixture containing methamphetamine. On appeal, the defendant argues that the

court made a number of errors in the computation of his Sentencing Guidelines range.

Also, he raises a Booker1

 claim. 

The district court addressed a number of issues at the sentencing hearing.

These included a claim that the district court must apply the standard of proof of
2

Blakely v. Washington, 124 S.Ct. 2531 (2004).

-2-

beyond a reasonable doubt in making sentencing determinations. The defendant also

claimed that the Guidelines range should be limited by the jury’s findings. We now

know, in light of Blakely2

 and Booker, that: the district court has an obligation to

determine a Sentencing Guidelines range using a preponderance of the evidence

standard; the resultant Guidelines range is merely advisory; and it serves as one of

the factors for consideration under 18 U.S.C. § 3553. Booker, 125 S.Ct at 764.

Neither Blakely nor Booker changed the method of determining a Guidelines range.

See United States v. Pirani, 406 F.3d 543, 552 n.4 (8th Cir. 2005) (“Nothing in

Booker suggests that sentencing judges are required to find sentence-enhancing facts

beyond a reasonable doubt under the advisory Guidelines regime.”). Consequently,

the district court did not commit error when it used a preponderance of the evidence

standard and refused to be limited by the jury’s finding as to drug quantity in

calculating the Guidelines range. As to the defendant’s specific challenges to the

court’s Guidelines determination, we find them to be without merit and summarily

affirm. See 8th Cir. R. 47B.

Although the district court did not err in its determination of the applicable

Sentencing Guidelines range, it was error to apply the Guidelines as mandatory, and

there was a Sixth Amendment violation in this case. The defendant objected at

sentencing, argued that the court should be bound by the jury determination, argued

that the court should apply a standard beyond a reasonable doubt, and specifically

cited Apprendi v. New Jersey, 530 U.S. 466 (2000). Under Pirani, 406 F.3d at 549-

50, this is sufficient to preserve “Booker error.” Because the defendant preserved this

error, and the government has not demonstrated the error to be harmless, we are

required under Booker to vacate the sentence and remand for resentencing using the

Booker remedial scheme.
-3-

In conclusion, we reject the defendant's claim that the Sentencing Guidelines

range determination was in any way erroneous, but we vacate the sentence and

remand for resentencing using the Booker remedial scheme.

______________________________