United States v. Barry A. Boyce ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3429
___________
United States of America, *
*
Plaintiff–Appellant, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
Barry A. Boyce, * [UNPUBLISHED]
*
Defendant–Appellee. *
___________
Submitted: June 23, 2005
Filed: July 5, 2005 (Corrected: 8/22/05)
___________
Before MURPHY, BYE, and SMITH, Circuit Judges.
___________
PER CURIAM.
The government appeals a sentence imposed after the Supreme Court's
landmark decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), where the
district court chose not to apply sentencing enhancements, but otherwise imposed a
guideline sentence. The district court's sentencing decision came as a result of its
understandable, yet erroneous, belief the Blakely opinion prevented it from finding
the facts necessary to enhance Boyce's guideline imprisonment range. See 124 S. Ct.
at 2537 (holding that "the statutory maximum for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant"). Under the advisory regime articulated in
United States v. Booker, 125 S. Ct. 738, 756-69 (2005), which we apply to the present
case, id. at 769, nothing prohibits a judge from this practice. Id. at 750. Although
Boyce argues his sixty-three month sentence is nevertheless reasonable in view of the
factors in 18 U.S.C. § 3553(a), an incorrect calculation of the guidelines precludes
review for reasonableness. See United States v. Mashek, 406 F.3d 1012, 1014-15
(8th Cir. 2005) ("If the sentence was imposed as the result of an incorrect application
of the guidelines, we will remand for resentencing as required by 18 U.S.C.
§ 3742(f)(1) without reaching the reasonableness of the resulting sentence in light of
§ 3553(a)".); United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005) ([T]he
district court must continue to determine "the appropriate guidelines sentencing
range," as it did pre-Booker, before it considers the other factors in 18 U.S.C.
§ 3553(a)). We therefore vacate Boyce's sentence and remand to the district court for
resentencing.
____________________________
-2-