## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 04-3826

________________ United States of America, Appellee,

v. Jeffrey Sorrells, Appellant. * * * * * * * * * * * Appeal from the United States District Court, Western District of Missouri.

________________ Submitted: October 10, 2005 Filed: December 23, 2005

________________ Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.

________________ GRUENDER, Circuit Judge.
Jeffrey Sorrells (“Sorrells”) pled guilty to one count of unlawfully receiving a firearm in violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(D) and one count of knowingly and intentionally distributing co caine base in violation of 21 U.S.C. § 841(a). The district court sentenced Sorre lls to 46 months’ imprisonment and three years’ supervised release. Sorrells app eals his sentence on the grounds that the court increased his base offe nse level for irrelevant uncharged conduct, see United States Sentencing Guidelines § 1B1.3(a), and that this conduct was not proven by the-2- Government. For the reasons discussed below, we vacate Sorrells’s sentence and remand to the district court for resentencing.

I. BACKGROUND
After Sorrells pled guilty, a United States Probation Officer prepared a presentence investigation report (“PSR”) . The PSR recommended an increase in Sorrells’s base offense level for two unc harged drug possessions : on January 1, 2003, medical personnel found cocaine on his pers on while he received medical treatment; and on June 24, 2003, police officers found anenvelope of cocaine salt at Sorrells’s residence while executing a search warrant (collectively, “the uncharged conduct”).
Sorrells submitted two timely objections to the PSR. First, his attorney objected to paragraphs 15 through 19 (paragraph 15 summarizes the January 1 event and paragraph 19 summarizes the June 24 event):
I object to the statement of facts contained in these paragraphs for the reason that this information was not admitted in Mr. Sorrells’ Plea Agreement, has not been proven to a jury beyond a reasonable doubt consistent with . . . Blakely v. Washington . . . and said information is being used for purposes in calculating relevant conduct increasing Sorrells’ base offense level. Mr. So rrells expressly admits the facts as set forth in . . . the written Plea Agreement. However, Mr. Sorrells objects to the information in Paragr aphs 15-19 and their use as relevant conduct in the [PSR]. Second, his attorney objected to the inclus ion of the narcotics from these events to calculate his base offens e level in paragraph 26:
I object to the information containe d in paragraph 26, except that Mr. Sorrells admits all facts previously admitted at the Plea Hearing and expressly contained in . . . the Plea Agreement. . . . The alleged discovery of cocaine base on January1, 2003, is not closely related in time to the-3- controlled substance offenses for wh ich Mr. Sorrells is charged . . . . Further, the alleged drug offenses, as described in the [PSR], do not appear as part of the “same courseof conduct or common scheme or plan as the offense of conviction.” Th e Report describes Mr. Sorrells was allegedly found with illegal substances , but there is no information these substances were for sale, had beensold by Mr. Sorrells, or that Mr. Sorrells had any intention of selling these items. At his sentencing hearing, Sorrells re iterated these objections and argued that mere allegations of the uncharged conduct could not be used to increase his offense level if the Government did not meet its burden of proof. He confirmed the district court’s characterization that his “objection [was] to the statement of facts contained in paragraphs [15-19],” and explained he had “not admitte d to any particular unrelated criminal activity. . . . I still think that th e U.S. Government should have the obligation to at least prove those matters up before th is Court.” In contrast, the Government construed Sorrells’s written and oral objecti ons as purely legal objections pursuant to Blakely v. Washington , 542 U.S. 296 (2004). The Governme nt argued at the hearing that “[t]here was never an objection as to whether or not the defendant did these activities, simply the objection was to the inclusion of these activities in calculating the sentencing guidelines.”
The district court characterized Sorrells’s objections as “ Blakely challenges” and overruled them without a hearing or a dditional evidence. The court held that Sorrells waived such objections under his pl ea agreement in which Sorrells agreed that “all other uncharged related criminal activity is to be considered relevant conduct for purposes of calculating the [base] offense le vel” and that the sentencing court would determine all sentencing-guidelines factors. Based solely on the PSR, the district court proceeded to find that the unchargedconduct was relevant to the crimes to which Sorrells pled guilty and increased his o ffense level four levels to level twenty, resulting in a guidelines range of 37 to 46 months’ imprisonment. The district court then sentenced Sorrells to 46 months’ imprisonment.1 In his objection to paragraph 26, Sorrells refers to the “alleged” discovery of cocaine base, the “alleged drug offenses,” and that he was “allegedly” found with illegal substances.
-4- II. DISCUSSION
Sorrells argues that the district court erred in finding fact s related to the uncharged conduct without requiring the G overnment to produce evidence in support of the allegations in the PSR. A sentenci ng court may accept the f acts in a PSR as true unless the defendant objects to specific factual allegations. See, e.g. , United States v. Stapleton , 268 F.3d 597, 598 (8th Cir. 2001). Th e Government argues that Sorrells did not object to the specific facts in hi s PSR because he made a strictly legal Blakely objection and did not explicitly deny any facts in the PSR.
Although we agree with the Government that Sorrells’s factual objections were confusingly intermingled with objections based on Blakelyand the relevance of the uncharged conduct, we hold the objections were minimally sufficient. Sorrells objected in writing to the “statement of facts” in paragraphs 15 through 19 and the “information in paragraphs 15-19.” At th e sentencing hearing, Sorrells reiterated these objections and explained that he had “ not admitted to any particular unrelated criminal activity.” Furthermore, Sorrells characterized the uncharged conduct as “alleged,” 1 asked the court to requi re the Government to “p rove up” the conduct, and contrasted his objection to the uncharged conduct with his express admission of facts in the plea agreement. Sorrells’s objecti ons were sufficiently specific to put the Government and the district court on no tice that he was challenging the factual allegations in the PSR con cerning the uncharged conduct. Cf. United States v. Moser , 168 F.3d 1130, 1132 (8th Cir. 1999) (holding th at a vague complaint about a “lot of facts” lacked specificity).
Given the Government’s failure to pres ent substantiating evidence, the district court erred in using the PSR ’s allegations of the uncharged conduct to increase2 Sorrells also argues that the district c ourt erred in increasing his base offense level by determining that the uncharged conduct was part of the “same course of conduct” as the crimes fo r which he pled guilty. See U.S.S.G. § 1B1.3(a). We cannot reach this issue because the district court erred in finding facts that substantiate the uncharged conduct. Until the Governme nt proves the uncharged conduct, our discussion of this issue would bean improper advisory opinion. See United States v. McAllister , 225 F.3d 982, 989 (8th Cir. 2000) (holding that a claim is not ripe for judicial review unless the moving party de monstrates a sufficiently concrete case or controversy within the meaning of Article III of the Constitution).
-5- Sorrells’s base offense level. See, e.g. , United States v. Poor Bear , 359 F.3d 1038, 1041 (8th Cir. 2004) (“If the defendant objects to any of the factual allegations . . . on which the government has the burden of proof, such as the base offense level. . . the government must present evidence at the se ntencing hearing to prove the existence of the disputed facts.”); United States v. Greene , 41 F.3d 383, 386 (8th Cir. 1994) (“If the sentencing court chooses to make a findi ng with respect to the disputed facts, it must do so on the basis of evidence, and not the presentence report.”). Such error requires us to vacate Sorrells’s sentence. See United States v. Arrington , 215 F.3d 855, 857 (8th Cir. 2000) (vacating defendant ’s sentence and remanding for a factual determination by the district court and resentencing). 2Because of the confusing context in which Sorrells raised his f actual objections, the government may offer substantiating evidence on remand. Cf. United States v. Hudson , 129 F.3d 994, 995 (8th Cir. 1997) (precluding the government from introducing additional evidence on remand because defendant made an unambi guous objection to factual allegations in the PSR).

III. CONCLUSION
For the reasons set forth above, we v acate Sorrells’s sentence and remand for resentencing in a manner consistent with this opinion.

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