## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-3914

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Tramale D. Wright, * * [UNPUBLISHED] Appellant. *

___________ Submitted: August 19, 2010 Filed: November 29, 2010

___________ Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

___________ PER CURIAM. Pursuant to a written plea agreement, Tramale Wright pleaded guilty to two charges. Count 1 charged him with r obbing a federally insured bank in April 2008, and in so doing committing assault with a dangerous weapon. Count 2 alleged that he robbed a federally insu red bank while on release inNovember 2008, and in so doing committed assault with a dangerous weapon (Count 2). Bo th counts charged a violation of 18 U.S.C. § 2113(a) and (d). The district court sentenced Wright to a prison term of 168 months, which was the top of the advisory guidelines range.

On appeal, Wright’s counsel moved to withdraw and filed a brief under Anders v. California , 386 U.S. 738 (1967), challenging th e reasonableness of Wright’s-2- sentence. After independently revi ewing the matter under Penson v. Ohio , 488 U.S. 75, 80 (1988), we denied counsel’s motion and directed the government to file a brief addressing an issue involving the court’ s Guidelines calculations. Upon careful review and for the reasons stated below, we now affirm.

I.

At the sentencing hearing, the district court made the following calculations under the sentencing guidelines. As to each c ount, the court began with a base offense level of 20, see USSG § 2B3.1(a), and added two levels because the property of a financial institution ha d been taken, see USSG § 2B3.1(b)(1). As to Count 1, the court added three levels because Wright had brandished a dangerous weapon, see USSG § 2B3.1(b)(2)(E), which raised the offense level to 25. As to Count 2, the court added two levels due to the amount of loss, seeUSSG § 2B3.1(b)(7 )(C), five levels because a firearm had been brandished, see USSG § 2B3.1(b)(2 )(C), and two levels because Wright had physically restrained persons during the offense and his escape,

see USSG § 2B3.1(b)(4)(B), all of which raised the offense level to 31. The court then calculated a combined offense leve l of 32 by adding one level to the higher offense level. See USSG § 3D1.4. The court th en added three levels under USSG § 3C1.3 based on Wright’s commission of an offense while on release, see 18 U.S.C. § 3147(1); USSG § 3C1.3, subtracted three levels for acceptance of responsibility, see USSG § 3E1.1, and conclude d that Wright’s total offense level was 32. With a criminal history category II, Wright’s resulting advisory gui deline range was 135-168 months’ imprisonment. There were no objections to the district court’s guideline calculations, and the court sentenced Wright to 168 months in prison.

In our Penson review, we discovered an error in the district court’s guideline calculations. The Application Instructions to the guidelines indicate that adjustments under Part C of Chapter 3 are to be applie d before adjustments to the offense level under Part D of Chapter 3. See USSG § 1B1.1(c), (d). If, in the present case, the-3- district court had applied the three-leve l increase under section 3C1.3 for Count 2 before calculating the combined offense le vel under section 3D1.4, the offense level for Count 2 would have been 34. Wright’s combined offense level would have been 34, given that his Count 1 offense level was 25. See USSG § 3D1.4(a), (c). His total offense level would have been 31 after subtracting three levels for acceptance of responsibility. And the advisory guidelin e range would have been 121-151 months, as compared with the district court’s calculated range of 135-168 months.

Following our Penson review, we directed the government to file a brief addressing whether the district court had committed plain error warranting relief when it applied the three-level increase under U SSG § 3C1.3 after calculating the combined offense level pursuant to USSG§ 3D1.4. The government has filed a brief asserting, among other things, that even if the distri ct court plainly erre d in calculating the advisory range, Wright cannot show that the error affected his substantial rights. Wright’s counsel has submitted a reply brie f arguing that the district court plainly erred in its guideline calculations, which re sulted in an overstated guidelines range, and that “there is sufficient ambiguity in the sentencing proceed ing to conclude that the district court might well have arrived at a lesser term of imprisonment” had it properly calculated the Guidelin es range. Wright has filed a pro se supplemental reply brief in which he maintains that his sentence is substantively unreasonable.

II.

District courts should begin all senten cing proceedings by correctly calculating the applicable guideline range. See United States v. Feemster , 572 F.3d 455, 460-61 (8th Cir. 2009) (en ba nc). In reviewing a sentence imposed by a district court, we must first ensure that the district court committed no significant procedural error, such as improperly calculating the Guidelines range. Seeid. at 461. If no objection was asserted below, our review is for plain error only. SeeUnited States v. Pirani , 406 F.3d 543, 549 (8th Cir. 2005) (e n banc). Under plain-erro r review, the defendant must-4- show (1) an error, (2) that it is plain, and (3) that it affects substantial rights. Seeid. at 550. If these first three prongs are met, we may then exercise our discretion to notice a forfeited error, but onl y if the error seriously aff ects the fairness, integrity, or public reputation of the judicial proceedings. See id.

We conclude that the district court co mmitted a procedural error when it failed to apply the section 3C1.3 adjustment befo re applying the section 3D1.4 adjustment. We further assume, for the sake of analysis , that the error is obvious. We conclude, however, that Wright has not satisfied his bur den to show that the error affected his substantial rights.

In Pirani , the en banc court clarified thata defendant seeking relief under a plain-error standard “must show a ‘reas onable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” 406 F.3d at 552. The court explai ned that “‘where the effect of the error on the result in the district court is uncerta in or indeterminate – where we would have to speculate – the appellant has not met his burden of showing a reasonable probability that the result would have b een different but for the error.’” Id . at 552-53 (quoting United States v. Rodriguez , 398 F.3d 1291, 1301 (11th Cir. 2005)). Pirani thus effectively superseded language in prio r panel decisions suggesting that the third prong of the plain-error analysis is satisfiedwhere the district court “might well” have sentenced the defendant to a shorter te rm of imprisonment but for an error in calculating the guidelines. See United States v. Warren , 361 F.3d 1055, 1058-59 (8th Cir. 2004), United States v. Weaver , 161 F.3d 528, 530 (8th Cir. 1998) (per curiam).

In this case, the district court receive d at sentencing several statements from employees of the bank that had been r obbed in November 2008. They described Wright’s violent manner in carrying out thatrobbery and the trauma they continued to suffer, and they asked the court to impose the maximum senten ce. Before imposing the sentence, the court stated : “There was so much in the way of gratuitous evil-5- involved in this particular enactment that I cannot ignore it. I do believe that the sentencing guidelines do providean adequate range for the penalty to be imposed.” Under the advisory guideline system announced in United States v. Booker , 543 U.S. 220 (2005), the court would have been free to impose the same “adequate” sentence of 168 months’ imprisonment pursuant to 18 U.S.C. § 3553(a), even if the court had calculated the correct advisory range of 121-151 months. Wright has not identified anything in the record showing a reasonable pr obability that but for the district court’s one-level error in calculating the guideline range, Wright would have received a more favorable sentence under § 3553(a). Given the district court’s statement that the range of 135-168 months provided an adequate pe nalty range, we can only speculate as to whether the court would have imposed a s horter term of imprisonment, and relief is not warranted under the plain-erro r standard of review. See United States v. Bain , 586 F.3d 634, 640 (8th Cir. 2009), cert. denied , 131 S. Ct. 74 (2010); Pirani , 406 F.3d at 553.

We also conclude that the district court did not impose a substantively unreasonable sentence. See United States v. Saddler , 538 F.3d 879, 890 (8th Cir. 2008).

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

______________________________