## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-1500

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the Western * District of Missouri. Nathan Allen Huff, * * Defendant - Appellant. *

___________ Submitted: October 16, 2007 Filed: January 30, 2008

___________ Before BYE, BOWMAN, and SMITH, Circuit Judges.

___________ BYE, Circuit Judge. Nathan Allen Huff appeals the thirty-s even month sentence imposed following his guilty plea to being a felon in possessi on of a firearm. Huff argues the district court improperly applied a presumption of reasonableness to the applicable guidelines range. We vacate Huff's senten ce and remand for resentencing.

I

On August 29, 2006, Nathan Allen Huff pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 921(g)(1). The presentence investigation report ("PSR") concluded Huff's advisory guidelines range was 108 to1 Huff did not object to the two-level enhancement under U.S.S.G. § 2K2.1(b)(5).
-2- 135 months, based on a total offense level of 20 and a criminal history category of V. The total offense level of 20 included: (1) a base offense level of 14; (2) a two-level enhancement under U.S.S.G. § 2K2.1(b)(4) because the firearm Huff possessed had previously been reported stolen; and (3 ) a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) because Huff possessed the fi rearm in conjunction with another felony offense.

At the sentencing hearing, Huff objectedto the four-level enhancement under U.S.S.G. § 2K2.1(b)(6). 1 The district court overrule d Huff's objection and found, by a preponderance of the evidence, Huff ha d illegally exhibited a firearm, thus warranting the four-level enhancement. Additionally, Huff moved for a downward departure under U.S.S.G. § 5K2.10, based on the victim’s c ontribution to the offense. The district court granted Huff's motio n and gave him a two-level downward departure. Huff requested an additional downward departure or variance based on his past history of extraordinary abuse and the way it affected his emotional state at the time of the offense. The district court d eclined to grant the departure or variance, noting current Eighth Circuit law, namely Claiborne v. United States , 439 F.3d 479 (8th Cir. 2006), overruled by Gall v. United States , ___ S.Ct. ___ , 2007 WL 4292116 (U.S. Dec. 10, 2007), precluded a variance.

After applying a three-level reducti on for acceptance of responsibility, the district court determined Huff's total offe nse level was 15 and his criminal history category was V, resulting in a guidelines rangeof thirty-seven to forty-six months. The district court then senten ced Huff at the low end of the applicable range to thirtyseven months.-3- This appeal followed. On appeal, Hu ff challenges the basis for the court’s decision not to impose a downward variance.

II

This court reviews a district court's sentence determination under an abuse-ofdiscretion standard. The United States S upreme Court recently clarified the scope of our review:

[T]he appellate court must first ensu re that the district court committed no significant procedural error, su ch as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence--including an expl anation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.

Gall , ___ S.Ct. ___ , 2007 WL 4292116, *7. See also Koon v. United States , 518 U.S. 81, 100 (1996) ("The abuse-of-discretion standard includes re view to determine that the discretion was not guided by erroneous legal conclusions.").

According to Huff, the record demonstrat es the district court interpreted this court’s binding precedent to require application of a presumption of reasonableness to the applicable guidelines range and to preclude a variance in the absence of extraordinary circumstances. As the Supr eme Court made clear in Rita v. United States , ___ S.Ct. ___ , 127 S.Ct. 2456 (2007), the presumption of reasonableness is an appellate presumption and "the senten cing court does not enjoy the benefit of a legal presumption that the Guide lines sentence should apply." Id. at 2465. See also United States v. Wilms , 495 F.3d 277, 282 (6th Cir. 2007) (reversing and remanding-4- defendant's sentence due to the district court's imposition of a presumption of reasonableness in violation of Rita ); United States v. Foreman , 436 F.3d 638, 644 n.1 (6th Cir. 2006) ("[A] distri ct court's job is not to impose a 'reasonable' sentence. Rather, a district court's mandate is to impose 'a sentence suffi cient, but not greater than necessary, to comply with the purpos es' of section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task.").

The record in this case makes clear, based on the presumption of reasonableness, the district court did not be lieve it had the discre tion to vary from the applicable guidelines range. In denying Huff's request for a variance, the district court stated: "I have no idea what's going to happen with Claiborne . But given the current state of the Eighth Circuit, I don't see how I can do a variance." The district court further explained: "I might have departed more in this case but for the Eighth Circuit precedent in the Claibornecase. And if, in fact, that case were to be overturned on appeal, then I would hope thatwe would have an opportunity to review this sentence . . . I would have given him less of a sent ence if I thought that I had the ability to do so." Sent. Tr. at 73, 74, 75.

In light of Rita , the district court's app lication of a presumption of reasonableness was an abuse of discretion. The district cour t imposed the sentence not as a result of the district court's assessment of the relevant factors and determination of the minimally adequate sentence, as required by § 3553(a), but as a direct consequence of the court's inco rrect conclusion it was bound by Eighth Circuit precedent to accord the guidelines range presumptive weight. See Koon , 518 U.S. at 100 ("A district court by definition abuses its discretion when it makes an error of law.") (citing Cooter & Gell v. Hartmarx Corp. 496 U.S. 384, 403-05 (1990)).2We find, and the government does not disagree, Huff raised a timely objection during sentencing and, therefore, preserved his challenge.
-5- Further, we do not believethis error was harmless. 2The government bears the burden of proving the district court's erro r was harmless, and must show that no "grave doubt" exists as to whether the erro r substantially influenced the outcome of the proceedings. United States v. Cullen , 432 F.3d 903, 905-06 (8th Cir. 2006) (citations omitted). The record makes clear had the district court properly exercised its discretion, it likely would have granted Huff's request for a variance. Sent. Tr. at 73, 74, 75 ("[I]f, in fact, that case were to be overturned on appeal, then I would hope that we would have an opportunity to review this sentence . . . I would have given him less of a sentence if I thought that I had th e ability to do so."). Given the record, we conclude the error substantially influen ced the outcome of the proceedings and, therefore, was not harmless.

IV

Accordingly, we vacate Huff's sentence and remand for rese ntencing consistent with this opinion.

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