United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2339

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United States of America,

Appellee,

v.

Anthony James Smith,

Appellant.

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Appeal from the United States

District Court for the

Northern District of Iowa.

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Submitted: June 9, 2005

 Filed: April 19, 2006

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Before RILEY, HANSEN, and MELLOY, Circuit Judges. 

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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 concurrent 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 Court granted Smith's petition for

certiorari and remanded Smith's case to us for 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 Guidelines advisory rather than mandatory).
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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 Supreme 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 court. 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 Guidelines enhancements, including six levels for

risk of harm to a minor, U.S. Sentencing Guidelines Manual (USSG) § 2D1.1(b)(5)(C)

(Nov. 2002), two levels for use of a minor, USSG § 3B1.4, and 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 district court's Guidelines' application factual

determinations when his case was first here.

The district court's application of the Guidelines under the mandatory regime

meets the first two parts of the four-part plain 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 probability that he would have received a

more favorable sentence with the Booker error 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] indicated, is an exceptionally long and

severe sentence. I don't care what the crime is. And so the thought never

crossed my mind to sentence you anything above the bottom of the
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guideline range. If I could sentence 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 argues that these statements reflect only the

district court's general dislike of the Guidelines and that they do not represent a

determination by the district court 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 statement 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 have 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 sentence 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 called upon to address any bases for a lesser sentence; indeed,

at the time, no such bases existed. The defendant is required to establish only a

reasonable probability that absent the Booker error 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 sentence is based upon and consistent with the

§ 3553(a) sentencing factors, and is reasonable. 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 fairness, integrity, or public reputation of judicial
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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 repeatedly 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 analysis 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 compelled to follow prior

circuit precedent." Id. (internal citations omitted). We therefore, consistent with the

same circuit precedent, likewise feel compelled to exercise our 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 view 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 course, 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, consider any appropriate

departures allowed under the Guidelines, and then apply the § 3553(a) statutory

factors in deciding whether to impose a sentence 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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