                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3565
                                   ___________

United States of America,               *
                                        *
              Appellee,                 * Appeal From the United States
                                        * District Court for the
      v.                                * District of Nebraska.
                                        *
Harry N. Hart,                          *      PUBLISHED
                                        *
             Appellant.                 *
                                   ___________
                             Submitted: June 20, 2005
                                Filed: August 2, 2005
                                 ___________
Before MELLOY, HEANEY, and GRUENDER, Circuit Judges.
                           ___________
PER CURIAM.


       Harry N. Hart pled guilty to being a felon in possession of a firearm. The
district court1 sentenced him to serve 36 months in prison. Hart appeals, arguing that
the district court imposed sentencing enhancements in violation of his Sixth
Amendment rights. We affirm.


      Hart was indicted for and pled guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). After entering a plea of guilty, a Presentence
Investigation Report (PSR) was prepared, which calculated his offense level at 17.
His criminal history category was set at IV, in part because he was subject to a two-


      1
        The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
point adjustment under United States Sentencing Guidelines section 4A1.1(e) because
Hart allegedly committed the offense less than two years after being released from
imprisonment for another offense.


      During the sentencing hearing, Hart made several objections to the PSR,
including an objection to the constitutionality of the sentencing guidelines. The
district court overruled all of Hart’s objections. Hart then moved for a downward
departure under United States Sentencing Guidelines section 4A1.3(b)(1) for
overstatement of criminal history. The district court granted the motion, reducing
Hart’s criminal history category from IV to III, resulting in a sentencing range of 30
to 37 months. The court imposed a sentence of 36 months.


      Hart’s sentencing occurred after Blakely but before the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005). Under these
circumstances, Hart’s objection to the constitutionality of the guidelines preserves his
claim of Booker error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005).
Unless the error is harmless, Hart is entitled to a remand for resentencing.


     A panel of this court recently addressed a similar situation in United States v.
Henderson, 408 F.3d 1078 (8th Cir. 2005). In that case, the district court found that
category V substantially overrepresented Henderson’s criminal history and departed
downward, sentencing him as a category IV offender. Id. at 1079. Henderson, who
preserved his Booker challenge, argued on appeal that the district court erred in
imposing a sentence pursuant to the mandatory guidelines scheme. Our court noted
that the district court committed Booker error, but that it was harmless because
“Henderson received a downward departure to a reasonable sentence.” Id.


      Henderson controls our decision here. United States v. Mills, 375 F.3d 689,
691 n.4 (8th Cir. 2004) (noting that one panel is bound by the decision of a prior


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panel). Hart received a downward departure, and we cannot say the ultimate sentence
is unreasonable. Finding the remainder of Hart’s arguments unpersuasive, we affirm.


GRUENDER, Circuit Judge, with whom MELLOY, Circuit Judge, joins, concurring.


      I concur with the court’s opinion. However, I write separately to emphasize
that harmless error review of a Booker error under Rule 52(a) of the Federal Rules of
Criminal Procedure is separate and distinct from the reasonableness review mandated
by Booker.


      As in Henderson, the court’s opinion holds that the mandatory application of
the guidelines was harmless because Hart “received a downward departure to a
reasonable sentence.” I believe that implicit in our holding today, and in Henderson,
is an understanding that the district court, having properly departed downward, could
have departed to a lower reasonable sentence but, instead, chose to impose the
sentence it pronounced. Consequently, the government carried its burden of proving
that the district court would not have imposed a lower sentence under advisory
guidelines. I do not believe that Henderson or today’s decision should be read to
hold that the Booker error is harmless merely because the ultimate sentence is
reasonable.


      In this case, I would make the harmless error analysis more explicit. The
district court granted Hart’s motion for a downward departure (which the government
does not appeal) to a sentencing range of 30 to 37 months and imposed a sentence of
36 months. Because the court chose to impose a sentence at the higher end of an
appropriately calculated guidelines range when it was free to impose a lower sentence
within that range, I agree that the government has carried its burden of proving that
Hart would not have received a lower sentence under advisory guidelines.
Accordingly, I agree that the Booker error in this case was harmless.


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