1

The Honorable Ann D. Montgomery, United States District Judge for the

District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1261

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United States of America, *

*

 Appellee, *

* Appeal From the United States

v. * District Court for the

* District of Minnesota.

Scott William Sutherlin, * 

* [PUBLISHED]

Appellant. *

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Submitted: September 15, 2005

Filed: October 5, 2005 

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Before RILEY, HEANEY, and COLLOTON, Circuit Judges.

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PER CURIAM.

Scott William Sutherlin appeals the sentence imposed by the district court1

following his plea of guilty to one count of armed bank robbery. We affirm.

Sutherlin was charged with five counts of bank robbery in violation of 18

U.S.C. § 2113(a) and (d). Sutherlin pled guilty to one count and the government

dismissed the four remaining counts. The plea agreement called for a United States
2

United States v. Booker, 125 S. Ct. 738 (2005), which rendered the guidelines

“effectively advisory” rather than mandatory, was issued the next day on January 12,

2005.

3

Blakely v. Washington, 542 U.S. 296 (2004).

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Sentencing Guidelines offense level of 26, criminal history category I, and a

corresponding sentence range of 63 to 78 months imprisonment. On January 11,

2005,2

 Sutherlin was sentenced to seventy months of imprisonment, to be followed

by five years of supervised release, restitution in the amount of $33,747, and a special

assessment of $100. Sutherlin appeals, asserting he has the right to be re-sentenced

in accordance with United States v. Booker, 125 S. Ct. 738 (2005). The government

argues that Sutherlin failed to preserve the Booker issue for appeal, and even if it was

preserved, advisory rather than mandatory application of the guidelines would not

affect the outcome, because the district court had discretion to order a lesser sentence

but chose not to.

Though the district court acknowledged at the change of plea hearing that

recent Supreme Court developments may render the guidelines advisory rather than

mandatory, there is nothing in the sentencing hearing transcript or the district court’s

Statement of Reasons indicating the court actually applied the guidelines as advisory

in sentencing Sutherlin. Thus, we cannot assume the district court applied the

guidelines in the advisory manner required by Booker. Our task is to determine

whether the district court’s apparent mandatory application of the guidelines warrants

remanding the case for resentencing. United States v. Perez-Ramirez, 415 F.3d 876,

877-78 (8th Cir. 2005). If the Booker issue was raised before the district court, we

apply the harmless error standard of review. Id. at 878. Here, Sutherlin asserted

Blakely3

 concerns at his change of plea hearing, and the district court specifically

acknowledged that Booker was pending and would likely render the guidelines

advisory rather than mandatory. At the sentencing hearing, Sutherlin’s counsel

specifically argued that in fashioning a punishment, “some measure may be taken by
4

Sutherlin either admitted or did not object to the factual recitations in the presentence investigation. Therefore, he is deemed to have admitted them and any

enhancement based on these facts does not violate the Sixth Amendment. PerezRamirez, 415 F.3d at 877. 

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the guidelines to the extent they exist,” but that “I think they are advisory.”

(Sentencing Tr. at 7.) Accordingly, the issue was preserved for appeal and the

harmless error standard applies. Perez-Ramirez, 415 F.3d at 877 (holding that

defendant preserved Booker appeal of his sentence by raising Blakely issue at

sentencing).

Under harmless error review, this court reviews the sentence to determine

whether the error affected the defendant’s substantial rights. Fed. R. Crim. P. 52(a).

A non-constitutional error4

 is harmless and should be disregarded “unless there is a

grave doubt as to whether the defendant would have received a more favorable

sentence under an advisory guidelines system.” Perez-Ramirez, 415 F.3d at 878. The

“beneficiary of the error,” here, the government, has the burden of proving the error

did not affect the defendant’s substantial rights. United States v. Haidley, 400 F.3d

642, 644 (8th Cir. 2005). Unlike the district court in Haidley, the district court

sentenced Sutherlin in the middle, rather than at the bottom, of the guidelines range.

Therefore, the concern that the district court was restricted in sentencing Sutherlin

based on the mandatory rather than advisory status of the sentencing guidelines is

muted. Perez-Ramirez, 415 F.3d at 878 (finding the Booker error harmless where the

district court “left unused some of its discretion” by not sentencing defendant at the

bottom of the sentencing range). Moreover, at the change of plea hearing, the district

court made it very clear that it understood the implications of the Blakely decision,

and would “at a minimum use the guidelines in an advisory capacity.” (Change of

Plea Hr’g Tr. at 16.) Considering the record as a whole, we find any Booker error,

that may have occurred in this case, harmless, and affirm the sentence imposed by the

district court.

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