1 The Honorable Ralph R. Erickson, United St ates District Judge for the District of North Dakota, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-1993

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Russell Henson, *
* Appellant. *

___________ Submitted: January 15, 2008 Filed: July 25, 2008

___________ Before COLLOTON and SHEPHERD, Circuit Judges, and ERICKSON, 1 District Judge.

___________ COLLOTON, Circuit Judge.

Russell Henson pled guilty to unlawful po ssession of a firearm as a previously convicted felon in violation of 18 U.S.C . §§ 922(g)(1) and 924(a)(2). The district2 The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri.
-2- court 2sentenced him to eighty-four months in prison, the bottom of his advisory guidelines range. We affirm.

In March 2006, a grand jury returned an indictment against Henson, charging him with unlawful possession of a firearm as a previously convicted felon. Henson pled guilty, and the presentence investigation report prepared by the United States Probation Office calculated Henson’s advisory guidelines range as 84 to 105 months’ imprisonment.

At Henson’s sentencing hearing, on April 16, 2007, the district court stated its belief that it was “obligated under 8th Ci rcuit law to find the sentencing guidelines presumptively reasonable.” (S. Tr. 8). As of that date, this court had held that a sentence within the advisory range wa s “presumptively reasonable” on appeal, United States v. Lincoln , 413 F.3d 716, 717-18 (8th Cir. 2005), and some district courts took this to mean that a similar presumpti on applied in the sentencing court. In Rita v. United States , 127 S. Ct. 2456 (2007), however, the Supreme Court clarified that while a court of appeals may apply a pres umption of reasonableness when conducting substantive review of a sentence within th e advisory range, “the sentencing court does not enjoy the benefit of a legal presump tion that the Guidelines sentence should apply.” Id . at 2465.

Henson’s counsel astutely objected to the district court’s application of a presumption of reasonableness, S. Tr. 3-4, and it is now clear in light of Rita that the district court erred by applying such a presumption. This constitutes what Gall v. United States , 128 S. Ct. 586 (2007), described as a “significant procedural error.” Id . at 597; see United States v. Greene , 513 F.3d 904, 907 (8th Cir. 2008).-3- The government argues that the districtcourt’s error was harmless, and we agree that an examination for harmlessness is appropriate. Fede ral Rule of Criminal Procedure 52(a) provides that any error that does not affect subs tantial rights “must be disregarded.” Prior to the invalidati on of the mandatory guidelines, the Supreme Court held that a misapplication of the gui delines would be harmless if “the district court would have imposed the same sent ence had it not relied upon the invalid factor or factors.” Williams v. United States , 503 U.S. 193, 203 (1992). Misapplication of the guidelines is now one species of “significant procedural error,” Gall , 128 S. Ct. at 597, still governed by a statutory provision, 18 U.S.C. § 3742(f)(1), that was discussed in Williams and left intact by United States v. Booker , 543 U.S. 220, 259 (2005).

We see nothing in Gall that undermines Williams or makes harmless-error analysis inapplicable to procedural se ntencing errors. Henson admitted all facts necessary to the calculation of his advisory guideline range, see S. Tr. 3; United States v. McCully , 407 F.3d 931, 933 (8th Cir. 2005), cert. denied , 126 S. Ct. 305 (2005), so the district court’s treatment of the range as presumptively reasonable is undoubtedly a non-constitutional error. It would be odd ind eed to accord “structural” status to such a non-constitutional error when even most c onstitutional violations (including a Sixth Amendment violation at sentencing) may be deemed harmless upon a proper showing. See Washington v. Recuenco , 548 U.S. 212, 218 (2006); United States v. Allen , 406 F.3d 940, 944-45 (8th Cir. 2005) (en banc). Hence, we have thrice indicated in dicta that a significant procedural error can be harmless, United States v. Vickers , 528 F.3d 1116, 1121 (8th Cir. 2008); United States v. Huff , 514 F.3d 818, 821 (8th Cir. 2008); Greene , 513 F.3d at 908, and several other circuits agree. United States v. Anderson , 526 F.3d 319, 330 n.6 (6th Cir. 2008); United States v. Grissom , 525 F.3d 691, 696 (9th Cir. 2008); United States v. Kristl , 437 F.3d 1050, 1054-55 (10th Cir. 2008); United States v. Arneto-Anaya , 262 F. App’x 936, 937 (11th Cir. 2008). The nature of Gall ’s procedural requirements may affect the sort of showing that is necessary-4- before such an error may be deemed harmless, but it does not render the error automatically prejudicial.

In this case, we conclude that the gove rnment has met its burden to show that the district court’s procedural error did not substantially influence the outcome of the sentencing proceeding. See Kotteakos v. United States , 328 U.S. 750, 764-65 (1946). After Henson’s counsel raised his objection to the presumption of reasonableness, the district judge denied Henson’s request for a downward variance from the advisory guidelines. The judge then stated:

I don’t find the guidelines to be unreasonable in this case. So while I take [the presumption of reasonableness] into account, I see no reason that I would do anything different had I had the opportunity to not do that. So the request is denied.

(S. Tr. 8).

In our view, this statement makes clear that whether or not the court felt constrained by a presumption of reasonab leness, it would have imposed the same sentence. Unlike post- Gall cases that we have remande d, where the district court stated that it would have prefe rred to grant a downward variance, see Huff , 514 F.3d at 821; Greene , 513 F.3d at 908, the district court here said the opposite. We need not even venture an inference that the error ha d no effect on the court’s selection of the sentence, cf. United States v. Nomeland , 7 F.3d 744, 749 (8th Cir. 1993); here, the district court answered that question expressly, see United States v. Thompson , 403 F.3d 533, 535-36 (8th Cir. 2005), and it did so after taking into account the potential impact of the specific error involved. Cf. United States v. Icaza , 492 F.3d 967, 971 (8th Cir. 2007) (holding that a “blanket stat ement” by a district judge that a sentence was “fair,” where the statement was “i ntended to cover any and all potential guidelines calculation errors,” was not su fficient to demonstrate harmless error) (quoting United States v. Bah , 439 F.3d 423, 431 (8th Cir. 2007)). We are thus-5- persuaded that the court w ould have imposed the same term of imprisonment absent the procedural error, and a remand is not required. Williams , 503 U.S. at 203. Henson does not argue that the sentence is substantively unreasonable under 18 U.S.C. § 3553(a), and we do not believe that it is.

For these reasons, the judgment of the district court is affirmed.

SHEPHERD, Circuit Judge, dissenting.

Because I do not believe that the governme nt has carried its burden of showing the harmlessness of the district court’s significant procedural error, applying a presumption of reasonableness to Henson’ s advisory guidelines range, I dissent.

“The difference between a review for harmless error and plain error is critical; under a harmless error standard the governme nt has the burden of persuasion, whereas under plain error, the defendant bears the burden of persuasion to show the error affected his substantial rights.” United States v. Gianakos , 415 F.3d 912, 923 n.6 (8th Cir. 2005); seeUnited States v. Olano , 507 U.S. 725, 734 (1993). Accordingly, here the government must prove that the distri ct court’s significant procedural error, presuming Henson’s Guidelines range to be reasonable, was harmless, i.e., not prejudicial to Henson. United States v. Mansoori , 480 F.3d 514, 523 (7th Cir. 2007) (citing Olano , 507 U.S. at 734-35). The government carries this burden if it “show[s] that no ‘grave doubt’ exists as to whether the error substantially influenced the outcome of the proceedings.” United States v. Greene , 513 F.3d 904, 908 (8th Cir. 2008) (quoting United States v. Cullen , 432 F.3d 903, 906 (8th Cir. 2006)). I note that this court has previously held that a sent encing court abused its discretion by applying a presumption of reasonableness, “plainly an error of law, rendering [the defendant’s] sentence unreasonable.” See United States v. Aguilera , 523 F.3d 876, 877-78 (8th Cir. 2008).-6- The district court stated at sentenci ng that it was applying a presumption of reasonableness to Henson’s Guidelines range of 84 to 105 months, sentenced him at the very bottom of that range, 84 months, and stated that, even if it had not applied the presumption, it would have imposed the same sentence. The district court’s only other explanation for the 84-month sentence was th at Henson’s health issues, his primary basis for seeking a downward variance, were not persuasive. The majority finds that the government has carried its burden of showing the district court’s error to be harmless in light of the district court’s st atement that, even absent the presumption, it would have imposed the same sentence.

However, we have rejected the government’s argument in an analogous case, United States v. Icaza , 492 F.3d 967 (8th Cir. 2007), involving the misapplication of an offense level enhancement. Id. at 970. There, as here , the government contended that the error was harmless because the reco rd showed that, notwithstanding the error, the district court would have given th e defendant the same sentence. Id. The portion of the record relied on by the government was the following statement by the district court:
I’m saying that what I think is suffi cient but not greater than necessary sentence, which is the charge the district court is give n, I think it’s 63 months, and to the extent that I have done a sword dance in accepting or rejecting role, amount of loss, number of victims, I think 63 months is a fair sentence under the Bookeranalysis and the Haack analysis.

Id. ; seeUnited States v. Booker , 543 U.S. 220 (2005); United States v. Haack , 403 F.3d 997 (8th Cir. 2005).

The IcazaCourt was not persuaded by the gove rnment’s contention, finding the misapplication of the enhancement was not harmless because the district court’s statement was “not detailed enough,” 492 F.3d at 970, in that “the sentencing court-7- pronounce[d] an identical alternative senten ce, not based on any alternative guidelines calculation but instead intended to cover any and all potential guidelines calculation errors . . . .” Id. at 971 (quoting United States v. Bah , 439 F.3d 423, 431 (8th Cir. 2006)). The court explained:

[T]he district court di d not determine an alternative guidelines range without the . . . enhancement and explain a variance from it based on § 3553(a) factors, but rather it made a blanket statement that 63 months is a “fair” sentence. Such a stat ement cannot provide the basis for a finding of harmless error.

Id.

In this case, the district court stated that it would have imposed the exact same sentence, even absent the presumption of reasonableness, but o ffered no explanation as to why the same sentence would be appropriate without the presumption. In fact, the district court offered almost no explan ation as to why the 84-month sentence was appropriate other than the presumption. In my view, supported by Icaza , if a district court can apply a presumption of reasonableness and then innoculate the sentence from reversal by stating that it would impose an identical sentence absent the presumption, a point I find suspect in light of Gall v. United States , 552 U.S. ___, 128 S. Ct. 586 (2007), see United States v. Vickers , 528 F.3d 1116, 1122-23 (8th Cir. 2008) (Shepherd, J., concurring), it must couple the statement with an adequate explanation. SeeIcaza , 492 F.3d at 971; see also Rita v. United States , 551 U.S. ___, ___, 127 S. Ct. 2456, 2468 (2007) (“The sent encing judge should set forth enough to satisfy the appellate court thathe has . . . a reasoned basi s for exercising his own legal decisionmaking authority.”). Where, as here, the sentencing court does not do so, the error is not harmless.-8- The Tenth Circuit has, in several cases , reversed and remanded for resentencing where, as in this case, the district court erroneously applied a presumption of reasonableness and then sentenced the de fendant at the bottom of the Guidelines range. See United States v. Conlan , 500 F.3d 1167, 1170 (10th Cir. 2007) (“[The defendant] was sentenced at the very botto m of his advisory guideline range, a sign we have taken in the past to indicate that the court may have done something differently had it not felt mistakenly bound by the guidelines.”); see also United States v. De Jesus-Gomez , 263 F. App’x 707, 710 (10th Ci r. 2008) (vacating and remanding for resentencing where “[t]he district court, after erroneously applying a presumption of reasonableness, and further stating th at [the defendant] had not overcome that presumption, imposed a sentence at the very bottom of the Guidelines range.”); United States v. Begay , 470 F.3d 964, 976-77 (10th Cir. 2006) (“But the government fails to argue harmless error. Nor could it do so successfully. The se ntence imposed was at the bottom of the Guidelines range. We ca nnot say whether the district court would have imposed the same sentence if it had properly understood the post-Booker legal landscape.”), overruled on other grounds , 128 S. Ct. 1581 (2008) . Henson’s verybottom-of-the-Guidelines-range sentence indicat es that, had the district court not been operating under the incorrect notion that the Guidelines range was presumptively reasonable, it might have sentenced Henson in a differe nt manner. SeeConlan , 500 F.3d at 1170. This further suggests that th e district court’s error was not harmless.

Given the record, I conclude the error substantially influenced the outcome of the proceedings and therefore was not harmless. I would vacate Henson’s sentence and remand for resentencing.

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