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United States v. Tiffany Manning , 161 F. App'x 607 ( 2005 )


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  •                     United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1613
___________
United States of America,               *
*
Appellant,           * Appeal from the United States
* District Court for the Eastern
v..                               * District of Arkansas.
*
Tiffany Manning,                        *     [UNPUBLISHED]
*
Appellee.            *
___________
Submitted: December 27, 2005
Filed: December 30, 2005
___________
Before ARNOLD, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
The government appeals the sentence imposed on Tiffany Manning after
Manning pleaded guilty to interstate transportation of stolen firearms. We vacate the
sentence and remand for resentencing.
In calculating Manning’s advisory sentencing range under the federal
Sentencing Guidelines, the district court interpreted United States v. Booker,
    125 S. Ct. 738
     (2005), as prohibiting the imposition of any sentencing enhancements not
based on facts admitted by Manning or proven to a jury beyond a reasonable doubt.
We have previously specifically rejected such an interpretation. See United States v.
Salter,
    418 F.3d 860
    , 862 (8th Cir. 2005); United States v. Haack,
    403 F.3d 997
    , 1003
(8th Cir. 2005), cert. denied,
    126 S. Ct. 276
     (2005). Manning’s advisory Guidelines
range would have been significantly higher had the district court imposed the
enhancements recommended by the presentence report, and nothing in the record
suggests that the district court would have imposed the same sentence had it properly
applied the Guidelines and Booker. Accordingly, the error was not harmless, and
remand is appropriate. See United States v. Garcia-Juarez,
    421 F.3d 655
    , 657-59 (8th
Cir. 2005) (although Guidelines are now advisory, sentence imposed as result of
incorrect application of Guidelines requires remand for resentencing unless error was
harmless; error in failing to impose enhancement when calculating Guidelines range
was not harmless because imposition of enhancement “would have significantly
increased” defendant’s Guidelines range); United States v. Hadash,
    408 F.3d 1080
    ,
1082 (8th Cir. 2005) (post-Booker, if district court incorrectly applied Guidelines,
this court will remand unless error was harmless, such as when district court would
have imposed same sentence absent error).
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