Calvert

MEMORANDUM **

The United States appeals the district court’s sentencing of John L. Calvert for Conspiracy to Retaliate Against a Witness, in violation of 18 U.S.C. § 371 ; Retaliation Against a Witness, in violation of 18 U.S.C. § 1513 (b); Use of a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924 (c)(1)(A); and Being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922 (g). We have jurisdiction under 28 U.S.C. § 1291 , and we vacate Calvert’s sentence and remand for resentencing pursuant to United States v. Booker, — U.S.-, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

The district court committed non-constitutional Booker error by holding that the Federal Sentencing Guidelines are mandatory and that it could not increase Calvert’s sentence on the basis of judicial factfinding. See Booker, 125 S.Ct. at 756-57 (holding that Guidelines are advisory, not mandatory); United States v. Ameline, 409 F.3d 1073, 1081 (9th Cir.2005) (en banc) (“[W]e view judicial factfinding as erroneous only when coupled with a mandatory guidelines system.”). Because the Government sufficiently preserved this error at the sentencing hearing, the harmless error standard…