UNITED STATES OF AMERICA, Plaintiff-Appellee, v. James TOELLE, Defendant-Appellant, 123 F. App'x 272

PER CURIAM. The defendant in this case was sentenced prior to the United States Supreme Court decision in United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The defendant raised and preserved error as to the constitutionality of the federal sentencing guidelines at the time of sentencing. The defendant was also sentenced to the minimum possible sentence under the applicable federal sentencing guidelines. Accordingly, we cannot say that the error in this case was harmless. We therefore vacate the sentence and remand for resentencing pursuant to United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See, United States v. Haidley, 400 F.3d 642 (2005).