## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 03-2339

________________ United States of America, Appellee,

v. Anthony James Smith, Appellant. * * * * * * * * * Appeal from the United States District Court for the Northern District of Iowa.

________________ Submitted: June 9, 2005 Filed: April 19, 2006

________________ Before RILEY, HANSEN, and MELLOY, Circuit Judges.

________________ HANSEN, Circuit Judge. We previously affirmed Anthony James Smith's conviction and 324-month sentence for attempting to manufacture five grams or more of actual methamphetamine and his 120-month conc urrent sentence for being a felon in possession of a firearm. See United States v. Smith , 363 F.3d 811 (8th Cir. 2004), vacated by 543 U.S. 1103 (2005). The Supreme C ourt granted Smith's petition for certiorari and remanded Smith's case to us fo r reconsideration in light of United States v. Booker , 543 U.S. 220, 259 (2005) (excising 18 U.S.C. §§ 3553(b)(1) & 3742(e), effectively making the Sentencing Guidelin es advisory rather than mandatory).-2- Having carefully considered Smith's appeal in light of Booker , we now vacate the sentences imposed by the district court and remand for resentencing. Smith was sentenced before the Supr eme Court's decision in Blakely v. Washington , 542 U.S. 296 (2004), and he did not raise the constitutionality of the Sentencing Guidelines in the district c ourt. His drug conviction sentence, imposed under the then-mandatory Guidelines, was based on a sentencing range that resulted from the application of a number of Guidelin es enhancements, including six levels for risk of harm to a minor, U.S. Sentenci ng Guidelines Manual (USSG) § 2D1.1(b)(5)(C) (Nov. 2002), two levels for use of a minor , USSG § 3B1.4, a nd two levels for obstruction of justice, USSG § 3C1.1. His concurrent felon-in-possession sentence was required to be the 10-year (120- month) statutory maximum. See USSG § 5G1.2, comment. (n.1). Smith agrees that our review of his sentences is for plain error since he did not challenge the use of the mandatory guidelines in the district court. See United States v. Pirani , 406 F.3d 543, 549 (8th Cir.) (en banc), cert. denied , 126 S. Ct. 266 (2005). Nor did he contest the districtcourt's Guidelines' application factual determinations when his case was first here. The district court's application of th e Guidelines under the mandatory regime meets the first two parts of the four-part plai n error test, that is, it was (1) error (2) that is plain. Id. at 550 (relying on United States v. Olano , 507 U.S. 725, 732-36 (1993)). To establish the third prong, that the error affected the defendant's substantial rights, Smith must "demonstrate[] a reasonable pr obability that he would have received a more favorable sentence with the Bookererror eliminated." Pirani , 406 F.3d at 551. At Smith's sentencing hearing, the district court stated: Of course I'm going to sentence you at the bottom of the guideline range. 324 months, as [defense counsel] indi cated, is an exceptionally long and severe sentence. I don't care what th e crime is. And so the thought never crossed my mind to sentence you anything above the bottom of the-3- guideline range. If I could senten ce you below the 324 months, I would. . . . I don't enjoy giving out a 324- month sentence to somebody who's 28 years old regardless of what the crime is. (Sent. Tr. at 17, 21.) The government argue s that these statements reflect only the district court's general dislike of the Gu idelines and that they do not represent a determination by the districtcourt that any of the 18 U.S.C. § 3553(a) sentencing factors supported a sentence below the now advisory Guidelines range. While we have stated that a district court's general dislike for the Guidelines does not satisfy the defendant's high burden of establishing an effect on his substantial rights, see Pirani , 406 F.3d at 553 n.6, the district court's st atement here is more than a general expression of dislike for the Guidelines. The ultimate burden on the defendant is to establish that he would have received a lower sentence had the Guidelines been applied as required by Booker . In our plain error analysis we have never required that the district court had to ha ve articulated a valid Booker basis for granting a lesser sentence in order to establish the third prong, only that the district court likely would have sentenced the defendant to a lesser se ntence if it had applied the Guidelines as advisory. We must keep in mind that Smith did not challenge his sentence as unconstitutional at the sentencing hearing, thus our plain error review. As such, the district court was not calle d upon to address any bases fo r a lesser sentence; indeed, at the time, no such bases existed. The defendant is required to establish only a reasonable probability that absent the Bookererror he would have received a lesser sentence. The district court made it clear that it would have sentenced Smith to a lesser sentence if it had the authority to do so. Booker potentially gives the district court that authority so long as a lesser se ntence is based upon and consistent with the § 3553(a) sentencing factors, and is reasona ble. Thus, Smith has met the third prong of the plain error test. Having found a plain error that affected Smith's substantial rights, we must now decide the fourth Olano step, "whether to exercise our discretion to review a plain error because it 'seriously affects the fairne ss, integrity, or public reputation of judicial-4- proceedings.'" Pirani , 406 F.3d at 553 (quoting Johnson v. United States , 520 U.S. 461, 467 (1997)). This final factor is separate and distinct from the third factor, though we note that "[t]his court has repeated ly chosen to exercise its discretion under the fourth factor to vacate the defendant's sentence" in Booker cases. United States v. Nahia , 437 F.3d 715, 717 (8th Cir. 2006). "[W] hile we reiterate our colleagues' concerns that a conclusory an alysis of the fourth Olano factor violates Olano 's admonition that 'a plain error affecting substantial rights does not, without more, satisfy the [plain-error] standard' . . . we nevertheless feel comp elled to follow prior circuit precedent." Id. (internal citations omitted). We therefore, consistent with the same circuit precedent, likewis e feel compelled to exerciseour discretion to recognize the plain error in this case and remand to the district court for resentencing. Our remand order in no way indicates a vi ew that a more lenient sentence for Smith would be either warranted or reasonable, particularly in light of the facts supporting the sentencing enhancements applicable to the calculation of his now advisory Guidelines range. We must, of c ourse, leave the resentencing analysis to the district court in the first instance. However, we reiterate that post-Booker the district court must determine the proper advisory Guidelines range, cons ider any appropriate departures allowed under th e Guidelines, and then apply the § 3553(a) statutory factors in deciding whether to impose a se ntence within the resulting advisory range or a non-Guidelines sentence. See United States v. Rivera , 439 F.3d 446, 448 (8th Cir. 2006).

We vacate Smith's sentences and remand to the district court for resentencing.

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