#### UNITED STATES of America, Plaintiff—Appellee, v. Andre BOOKER, Defendant—Appellant.

No. 04-1142.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 8, 2004.

Decided: July 29, 2005.

Jess E. Michaelsen, U.S. Attorney’s Office, Kansas City, MO, for Plaintiff-Appellee.

Raymond C. Conrad, Jr., Anita Lee Burns, Federal Public Defender’s Office, Kansas City, MO, for Defendant-Appellant.

Before MELLOY, LAY, and COLLOTON, Circuit Judges.

PER CURIAM.

Andre Booker (the “defendant”) pled guilty to one count of being a felon in possession of a firearm. He moved for a downward departure, alleging that he possessed the firearm solely for the purpose of self-defense. He alleged that possession of the firearm was necessary because he had testified in a murder trial, he had been shot, two of his brothers had been murdered, and numerous people had been following him. The district court1 found his claims regarding self-defense partially credible. The district court noted, however, that his claims were not sufficient to justify a downward departure. After denying his motion for a downward departure, the district court calculated a Guidelines range of thirty to thirty-seven months. The district court stated, “I am not going to go to the top of the Guidelines partly because I am convinced that it was self-protection here, but I don’t think I should go to the complete bottom of the Guidelines, either.” The district court then sentenced the defendant to thirty-three months’ imprisonment.

The defendant’s counsel filed an appeal brief under *Anders v. California,*386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), along with a motion to withdraw. While that appeal and motion were pending, the Supreme Court issued its opinion in *Blakely v. Washington,*542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We subsequently entered an order denying counsel’s *721motion to withdraw and instructing counsel to determine whether the defendant wished to challenge his sentence based on *Blakely.*Counsel then filed notice of the defendant’s intention to present additional argument under *Blakely.*Since then, the Supreme Court has decided *United States v. Booker,*— U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which declared the Sentencing Guidelines effectively advisory in all cases.

When a defendant raises a *Blakely*claim for the first time on appeal, we review for plain error under the standard set forth in *United States v. Pirani,*406 F.3d 543, 552 (8th Cir.2005). To show prejudice under *Pirani,*a defendant must show a reasonable probability that the district court would have granted a lesser sentence had the district court not treated the Guidelines as mandatory. *Id.*Here, the district court sentenced the defendant in the middle of the applicable range. The district court specifically noted the impropriety, under the facts of the case, of imposing a sentence at the top or bottom of the range. There is nothing to suggest that the district court would have given Mr. Booker a lesser sentence had the district court not treated the Guidelines as mandatory.

Finding no other issues that merit discussion, *see*8th Cir. R. 47B, the judgment of the district court is affirmed.

1

. The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri.