## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-4201

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Leo Muhammad, also known as Bo, * * Defendant - Appellant. *

___________ Appeals from the United States No. 05-4204 District Court for the Eastern ___________ District of Missouri. United States of America, * * [UNPUBLISHED] Plaintiff - Appellee, * * v. * * Germaine Davis, also known as Gary * Henderson, * * Defendant - Appellant. * *___________ No. 05-4205

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Anthony Francis, * * Defendant - Appellant. * *

___________ No. 05-4252

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Robert Francis, also known as Pete, * * Defendant - Appellant. *

___________ Submitted: September 26, 2006 Filed: November 6, 2006

___________ Before ARNOLD, BYE, and MELLOY, Circuit Judges.

___________1 The Honorable Catherine D. Perry, United St ates District Judge for the Eastern District of Missouri.
2 United States v. Francis , 141 Fed. Appx. 501, 503 (8 th Cir. 2005). Defendant Leo Muhammad did not petition the Supr eme Court for certiorari, but rather, petitioned our court for rehearing. Followi ng the Supreme Court’s remand of his codefendants’ cases, we granted reheari ng as to defendant Leo Muhammad and remanded his case for resentencing along with his co-defendants. Id. -3- PER CURIAM. The defendants were each convicted of c onspiring to distribute more than five kilograms of cocaine. They were senten ced under the mandatory Guidelines regime prior to the Supreme Court’s decision in United States v. Booker , 543 U.S. 220 (2005). Our court affirmed the judgment of the district court 1 as to all the convictions and sentences. United States v. Francis , 367 F.3d 805 (8th Cir. 2004). In that opinion, we discussed the facts of the underl ying offenses at length and addressed the defendants’ fact-based challenges regardi ng drug quantity determinations and various enhancements under the United States Se ntencing Guidelines. Following Booker , the Supreme Court granted three of the defe ndants’ petitions for certiorari, found Sixth Amendment Booker error as to each defendant’s se ntence, vacated our opinion, and remanded to our court. Francis v. United States , 543 U.S. 1098 (2005); Davis v. United States , 543 U.S. 1108 (2005); Francis v. United States , 543 U.S. 1180 (2005). On remand from the Supreme Court, we remanded to the district court for resentencing and reinstated our earlier opinion “except as may be inconsistent with the remand for resentencing under the advisory guideline system as outlined in United States v. Booker .” 2 On remand from our court, the district c ourt applied the Guidelines as advisory, applied the factors of 18 U.S.C. § 3553(a) , and used the previously determined Guidelines range for each defendant as th e advisory Guidelines range. As to each defendant, the district court determined th at a recalculation of the Guidelines range-4- was not within the scope of our remand, and in the alterna tive, even if it were within the scope of our remand, the district cour t renewed or re-adopted its prior Guidelines calculations. Under the advisory regime , the district court reimposed the same sentences for defendants Anthony Francis, Robert Francis, and Leo Muhammad. As to these three defendants, the sentences were within their respective advisory Guidelines ranges. Anthony Francis recei ved a sentence of 420 months based on an advisory range of 360 months to life. Robe rt Francis received a sentence of life based on an advisory “range” of life. Leo Muhammad received a sentence of 360 months based on an advisory range of 360 months to life. As to defe ndant Germaine Davis, the district court imposed a sentence of 180 months. This sentence was below Davis’s initial sentence of 235 months and below the low end of the applicable advisory Guidelines range of 235 to 293 months. All defendants appeal. All defendants challenge the district court’s use of facts at sentencing found by the judge under a pre ponderance of the evidence standard. All defendants challenge their respective se ntences as unreasonable. We affirm. As we have previously held, the remedial portion of Bookerpermits reliance on facts found by the sentencing court under a preponderance of the evidence standard as long as those facts are used to senten ce under an advisory rather than a mandatory Guidelines regime. United States v. Johnson , 450 F.3d 831, 833 (8th Cir. 2006). We previously affirmed the district court’s sentencing-related factual findings, and the district court properly interp reted the scope of our rema nd order. On remand, the district court was aware of the advisory nature of the Guidelin es and sentenced the defendants under this advisory regime, thus correcting the Sixth Amendment, Booker error. Regarding reasonableness, our review is for abuse of discretion. United States v. Haack , 403 F.3d 997, 1004 (8th Cir. 2005) (describing reasonableness review as review for abuse of discretion). The sent ences received by defendants Robert Francis,-5- Anthony Francis, and Leo Muhammad are within the properly calculated advisory Guidelines ranges and are therefore presumptively reasonable. United States v. Lazenby , 439 F.3d 928, 932 (8th Cir. 2006). De fendant Germaine Davis received a downward variance from the applicable range , and he argues that his sentence should be lower. We have consid ered each defendant’s arguments concerning reasonableness and find them to be without merit. In applying § 3553(a), the district court did not consider any improper factors, fail to consider important factors, nor commit any clear error of judgment in the application of the those factors. Haack , 403 F.3d at 1004. Although there are significant differences among the sentences received by these defendants, the differences are easily expl ained by each defendant’s criminal history, the different quantity of drugs attributed to each defendant, a nd each defendant’s role in the underlying conspiracy. We find no abuse of discretion. We have carefully considered the defe ndants’ other arguments, find them to be without merit or outside the scope of ourremand order, and su mmarily affirm under Eighth Circuit Rule 47B. The judgment of the district court is affirmed.

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