Not For Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 04-2203

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                           JASON BOURGEOIS,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]


                                  Before

                        Selya, Circuit Judge,
                   Stahl, Senior Circuit Judge,
                     and Lynch, Circuit Judge.



     Michael J. Iacopino and Brennan Caron Lenehan & Iacopino on
brief for appellant.
     Thomas P. Colantuono, United States Attorney, and Peter E.
Papps, Assistant U.S. Attorney, on brief for appellee.



                             April 18, 2005
          Per Curiam.      Defendant, Jason Bourgeois, appeals from a

criminal sentence imposed before the United States Supreme Court's

recent decision in United States v. Booker, 

.          Booker

rendered the United States Sentencing Guidelines advisory rather

than mandatory.     

         Bourgeois argued below that

Blakely v. Washington, 

(2004), effectively rendered

the Sentencing Guidelines unconstitutional as a whole. Pre-Booker,

the   district    court    found     that   the     Guidelines   were   not

unconstitutional as applied to Bourgeios, who had stipulated to the

relevant facts in his plea agreement, and therefore sentenced him

under the Guidelines.      Bourgeois appealed.       While the appeal was

pending, Booker was decided, and we invited supplemental briefing

as to whether Bourgeios preserved a claim of Booker error below

and, if so, whether that error was harmless.

          The parties agree, correctly, that by challenging the

constitutionality     of   the    Guidelines   in   the   district   court,

Bourgeios preserved a claim of Booker error, i.e., that he was

sentenced under a mandatory Guidelines system.            See United States

v. Antonakopoulos, 

, 76 (1st Cir. 2005).          Thus, the only

issue presented by this appeal is whether the preserved Booker

error was harmless.    On that issue, the government has the burden

of showing harmlessness.         Chapman v. California, 

, 24

(1967); United States v. Ventura-Cruel, 

, 64 (1st Cir.

2003).   To make such a showing in the sentencing context, the


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government must show, at a bare minimum, "'that the error did not

affect the district court's selection of the sentence imposed.'"

United States v. Labastida-Segura, 

, 1143 (10th Cir.

2005) (quoting    Williams   v.   United   States,    

,   203

(1992)).

           The precise standard of proof depends on whether the

error was a constitutional one, whose harmlessness must be proved

beyond a reasonable doubt.         

.            Here,

however, even assuming, without deciding, that the error was not of

constitutional dimension (since Bourgeois' sentence was based on

the   parties'   factual   stipulations    rather    than   on   judge-found

facts), the government has not met even the lesser standard of

demonstrating the absence of any "grave doubt" as to whether the

error was harmless. Kotteakos v. United States, 

, 764-

65 (1946); see also United States v. Haidley, 

, 645 (8th

Cir. 2005).

           It is often some indication that a preserved Booker error

was not harmless when, as now, the district court sentenced the

defendant at the very bottom of the applicable Guidelines range.

See, e.g., United States v. Lea, 

, 1116 (8th Cir.

2005); 

; United States v. Hazelwood, 

, 801 (6th Cir. 2005); 

.

In this case, there are additional indications that "it is at least

possible," 

, that the district court


                                   -3-
would impose a lesser sentence under a non-mandatory Guidelines

regime.    At the sentencing hearing, Bourgeios' counsel made an

extensive proffer of the witnesses he would call if the court were

not bound by the Guidelines.       Those witnesses, he represented,

would have testified that Bourgeois was cooperative during his

pretrial supervision, that he is a hard and dependable worker, and

that he overcame a severe substance abuse problem.          Based on that

proffer, the district court acknowledged that Bourgeois "worked

hard and . . . [did] all the things [he] should do as a reasonable

citizen" but expressly disavowed any reliance on those factors,

which were not relevant under the Guidelines but may be relevant

under post-Booker standards.     See 

.

The government offers no indications to the contrary.         Under these

circumstances, we are reluctant to say that the error was harmless.

           Accordingly, the sentence is vacated and the case is

remanded   for   resentencing   under    the   standards   articulated   in

.           We intimate no view as to the

appropriate sentence to be imposed.

           The conviction is affirmed, the sentence is vacated, and

the matter is remanded for resentencing.




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