USA v. Mathias Pizano

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-4148
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Donald R. Swank, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 23, 2005
Filed: August 30, 2005
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Before ARNOLD, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Donald Swank challenges the sentence imposed by the district court upon his
guilty plea to conspiring and attempting to manufacture 5 or more grams of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. For
reversal, he argues under United States v. Booker, 125 S. Ct. 738 (2005), that the
district court erred in sentencing him under a sentencing scheme that is no longer
valid.
The district court erred in sentencing Mr. Swank under a mandatory Guidelines
regime, see Booker, 125 S. Ct. at 756-57, and Mr. Swank sufficiently preserved the

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issue at sentencing by challenging his sentencing range under Blakely v. Washington,
124 S. Ct. 2531 (2004), see United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005)
(en banc), petition for cert. filed, (U.S. July 27, 2005) (No. 05-5547). We thus review
for harmless error. See United States v. Haidley, 400 F.3d 642, 644-45 (8th Cir.
2005).
We are left with “grave doubt” as to whether the error was harmless: not only
was Mr. Swank sentenced at the bottom of the Guidelines range, see id. at 645
(holding not harmless district court’s error in imposing sentence under mandatory
Guidelines regime where court sentenced defendant to bottom of Guidelines range,
even if no Sixth Amendment issue was present), but the court stated explicitly that
the sentence given was the lowest allowed by law. Accordingly, we remand for
resentencing.
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