                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                      04-3350
                                    ___________

United States of America,               *
                                        *
             Plaintiff - Appellee,      *
                                        * Appeal from the United States
      v.                                * District Court for the District of
                                        * Nebraska.
Joab J. Garcia,                         *
                                        *
             Defendant - Appellant.     *
                                   ___________

                            Submitted: February 16, 2005
                                Filed: August 2, 2005
                                   ___________

Before
                                    ___________

MELLOY, Circuit Judge.

       Joab J. Garcia pled guilty to a charge of possession with intent to distribute
over fifty grams of methamphetamine. At sentencing, the district court found a base
offense level of twenty-six, adjusted downward two levels for safety-valve relief, and
adjusted downward three more levels for acceptance of responsibility, resulting in a
total offense level of twenty-one. Mr. Garcia’s criminal history was category one
resulting in a Guidelines range of thirty-seven to forty-six months. The district court
imposed a thirty-seven month, bottom-of-the-range sentence. Because Mr. Garcia
was eligible for safety-valve relief, the mandatory sixty-month statutory minimum did
not apply.

      Sentencing took place after the Supreme Court decided Blakely v. Washington,
124 S.Ct. 2531 (2004), but before it decided United States v. Booker, 125 S.Ct. 738
(2005). Mr. Garcia did not raise any Blakely-related challenges at sentencing.
Because he raises the Blakely/Booker issue for the first time on appeal, we review
only for plain error. United States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005).

       Before we may exercise our discretion to grant relief under Fed. R. Crim. Pro.
52(b), we must find (1) error that is (2) plain and that is (3) prejudicial, i.e., that
substantially affects the defendant’s rights. Pirani, 406 F.3d at 550. Even if a
defendant makes this showing, we may only grant relief if “the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
quotation marks omitted). Here the district court applied the Guidelines as mandatory
and therefore, understandably, committed error. We have already held that such an
error is plain. United States v. Hill, 410 F.3d 468, 473 (2005). We can only find that
it affects the defendant’s substantial rights, however, if the defendant shows a
reasonable probability that the sentencing court would have applied a lesser sentence
had it not treated the Guidelines as mandatory.

       We have held that a sentence at the bottom of the Guidelines range, standing
alone, is insufficient to show prejudice. Pirani, 406 F.3d 553. Here, the defendant
suggests that the record contains additional indicia of the district court’s desire to
grant a lesser sentence. In particular, he points to the fact that the district court
expressly recommended that he appeal. He argues that this “can only be taken as an
indication that the sentence might be different but for the guidelines.” We disagree.
The district court actually stated, “In light of the Supreme Court’s decision upcoming
I suspect it would be a good idea to appeal this case.” At a minimum, this statement
shows that the district court noted for the defendant’s benefit that an upcoming

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Supreme Court opinion was relevant to his appeal. At most, it shows that the district
court recognized uncertainty in the state of the law and anticipated that the sentencing
might involve error. This statement does not suggest the district court would have
granted a more favorable sentence under an advisory regime.

       We also note that other comments by the judge in this case are routine
statements made by most courts at sentencing hearings to ensure that all issues are
addressed and that defendants know their rights. For example, the court inquired as
to the status of any substantial assistance from the defendant and a possible Rule 35
motion for relief by the government. The court also advised the defendant of the one-
year deadline on the filing of a Rule 35 motion and advised the defendant to remain
in contact with his attorney. We view these statements as prudent recommendations
and inquiries that many courts make at sentencing. Because we find that the court’s
statements do not support a finding of prejudice, and because the record contains
nothing beyond a bottom-of-the-range sentence to suggest prejudice, Pirani forecloses
any grant of relief.

      The judgment of the district court is affirmed.

HEANEY, Circuit Judge, with whom BYE, Circuit Judge, joins, concurring.



       I adhere to the view stated by Judge Bye in Pirani, that defendants who did not
properly preserve their Booker claims in the district court are nonetheless generally
entitled to resentencing under a constitutional regime. See United States v. Pirani,
406 F.3d 543, 562-67 (8th Cir. 2005) (en banc) (Bye, J., dissenting). Because a
majority of our court has held to the contrary, however, I concur.
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