                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3320
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Kerry Brooks,                            *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 12, 2005
                                 Filed: August 10, 2005
                                  ___________

Before COLLOTON, McMILLIAN, and BENTON, Circuit Judges.
                         ___________

COLLOTON, Circuit Judge.

      Kerry Brooks pled guilty to being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 924(a)(2), 922(g)(1), and 924(e)(1). The district court1 sentenced
Brooks to 210 months. Brooks appeals his sentence, and we affirm.




      1
       The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
                                          I.

      Brooks pled guilty to unlawful possession of a handgun. In his plea agreement,
he admitted that on November 6, 2002, he was in possession of a Smith and Wesson
revolver. He also acknowledged that he had been convicted previously in state court
of second degree attempted robbery, first degree attempted robbery, felony sale of a
controlled substance, and felony sale of a controlled substance near a school. These
convictions qualified Brooks as an armed career criminal pursuant to 18 U.S.C.
§ 924(e)(1), and thus established a statutory minimum sentence of 15 years’
imprisonment. E.g., United States v. Mincks, 409 F.3d 898, 899 (8th Cir. 2005).

       The probation office calculated a total offense level of 31 under the United
States Sentencing Guidelines, taking into account an offense level of 34 under
§ 4B1.4(b)(3)(A) and a three-level downward adjustment for acceptance of
responsibility pursuant to § 3E1.1(a) and (b). Section 4B1.4(b)(3)(A) provides that
the offense level for an armed career criminal is 34, rather than 33, if the defendant
used or possessed the firearm in connection with a crime of violence or a controlled
substance offense that led to one of the convictions. The district court found that
Brooks had used the weapon in connection with an assault on a police officer in the
course of an arrest. Without this finding, Brooks’s total offense level would have
been 30, resulting in a sentencing range of 180-210 months instead of the range of
188-235 months that the district court considered.

       At sentencing, Brooks objected to the district court’s finding that he had used
the weapon in connection with a crime of violence. Brooks argued that Blakely v.
Washington, 124 S. Ct. 2531 (2004), precluded the district court from considering
this fact, because it was neither admitted by Brooks nor proved to a jury beyond a
reasonable doubt. The district court declined, absent contrary authority from the
Supreme Court or this court, to hold the sentencing guidelines unconstitutional. The
court thus sentenced Brooks according the mandatory guidelines, and imposed a term

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of 210 months’ imprisonment, which was in the middle of the range of 188 to 235
months.

      Since then, the Supreme Court held in United States v. Booker, 125 S. Ct. 738
(2005), that certain applications of the mandatory sentencing guidelines violated the
Sixth Amendment. As a remedy, the court declared the guidelines “effectively
advisory” in all cases. Brooks preserved the opportunity to argue Booker on appeal,
because he objected to his sentence based on the Court’s earlier decision in Blakely.
See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc).2

       The district court’s imposition of sentence did not involve a violation of the
Sixth Amendment. Booker held that “[a]ny fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant or
proved beyond a reasonable doubt.” 125 S. Ct. at 756. In this case, the maximum
sentence authorized by the facts admitted by Brooks and his prior convictions was
210 months’ imprisonment – the top of the guideline range that would have applied
absent the district court’s disputed finding about use of a firearm in connection with
a crime of violence. The sentence actually imposed was 210 months’ imprisonment,
and it thus did not exceed the authorized maximum.




      2
        The government argues that Brooks waived the right to appeal on this ground,
because his plea agreement provided that the sentence would “be determined and
imposed pursuant to the Sentencing Guidelines,” and that Brooks retained the right
to appeal only sentencing issues “which ha[d] not been agreed upon or which ha[d]
not been specifically addressed” in the plea agreement. We have rejected the
government’s contention in a case involving virtually identical language, United
States v. Lea, 400 F.3d 1115, 1116 (8th Cir. 2005) (per curiam), and we therefore do
so here as well.

                                         -3-
       The case does involve non-constitutional error, however, because Brooks was
sentenced according to the mandatory guidelines. Because Brooks preserved this
error, we apply harmless-error doctrine to determine “‘whether resentencing is
warranted or whether it will instead be sufficient to review a sentence for
reasonableness.’” See United States v. Haidley, 400 F.3d 642, 644 (8th Cir. 2005)
(quoting Booker, 125 S.Ct. at 769). Where, as here, the Booker error is not of
constitutional magnitude, “the government is required to establish that we do not have
‘grave doubt’ as to whether the error substantially influenced the outcome of the
proceedings.” Haidley, 400 F.3d at 645 (quoting Kotteakos v. United States, 328 U.S.
750, 765 (1946)).

       In Haidley, we identified the issue as whether it is “harmless error to sentence
a defendant under a mandatory federal sentencing guideline regime, as opposed to the
Booker advisory system, when there is no Sixth Amendment issue as to the guideline
computation and the defendant is sentenced at the bottom of the federal sentencing
guideline range.” 400 F.3d at 644. We concluded that the error in Haidley’s case was
not harmless. In reaching that conclusion, we were “influenced principally by the fact
that the district judge made a conscious decision to sentence the defendant at the
bottom of the guideline range.” Id. at 645.

      By contrast, the district court here sentenced Brooks to the middle of the
applicable guideline range, stating explicitly that it did not “believe that this is a low
end of the guidelines case.” (S. Tr. at 17). The district court was aware that it could
have imposed a lesser sentence on Brooks, and it chose not to do so after considering
the need for adequate punishment, deterrence, and protection of the public.

      On this record, we do not have grave doubt whether the application of
mandatory guidelines substantially influenced the district court’s determination to
impose a sentence of 210 months’ imprisonment. Under the post-Booker advisory
guideline regime, the district court must still consider the applicable guideline range

                                           -4-
of 188-235 months, but it may vary from the range if it concludes reasonably that
factors set forth in 18 U.S.C. § 3553(a) warrant a different sentence. Even under the
mandatory guidelines, however, the district court was able to consider the § 3553(a)
factors in determining where within the mandatory range Brooks should be sentenced.
That the court elected a sentence of 210 months from within the range of 188 to 235
months gives us confidence that the added flexibility of the post-Booker regime
would not have led the district court to impose a more favorable sentence. See United
States v. Perez-Ramirez, No. 04-3048, 2005 WL 1679512, at * 1 (8th Cir. July 20,
2005) (holding that where district court “left unused some of its discretion” to impose
a more favorable sentence, non-constitutional Booker error was harmless).

      Brooks has not raised any argument, after Booker was decided, that his
sentence is unreasonable with regard to § 3553(a). Assuming we should nonetheless
consider the question, cf. Booker, 125 S.Ct. at 769, we conclude that the sentence of
210 months’ imprisonment, which is within the advisory guideline range, is
reasonable. The sentence suggested by the advisory guidelines, of course, are a factor
that must be considered in fixing a sentence, and we see nothing in the record to
suggest that the other factors set forth in § 3553(a) militate so strongly in favor of a
sentence more favorable than the guideline sentence that a sentence within the
advisory range is unreasonable.

      The judgment of the district court is affirmed.
                     ______________________________




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