                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-2117
                                  ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *   Appeal from the United States
      v.                                *   District Court for the
                                        *   Southern District of Iowa.
Rigoberto Mondragon-Hernandez,          *
                                        *
            Appellant.                  *

                                  ___________

                             Submitted: March 15, 2005
                                Filed: May 27, 2005
                                 ___________

Before WOLLMAN, LAY, and HANSEN, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Rigoberto Mondragon-Hernandez (Mondragon-Hernandez) pleaded guilty to
distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B), and appeals from the sentence of 87 months’ imprisonment and four years
of supervised release imposed by the district court.1 We affirm.




      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
                                        I.
      While under surveillance, a confidential informant received a one-gram sample
of methamphetamine from Mondragon-Hernandez. The informant ordered a pound
of methamphetamine from Mondragon-Hernandez, who was later arrested when he
supplied an undercover agent with 475.9 grams of the drug.

      The indictment listed the amount of methamphetamine as 50 grams or more.
 Mondragon-Hernandez admitted at his plea hearing that the total amount of
methamphetamine distributed by him and reasonably foreseeable to him was in excess
of 50 grams. The presentence investigation report (PSR) stated that Mondragon-
Hernandez had sold 475.9 grams of methamphetamine to the undercover agent. At
the sentencing hearing, Mondragon-Hernandez stated that he had no factual
objections to the presentence report. Adopting the PSR, the district court found that
Mondragon-Hernandez was responsible for at least 350 grams but less than 500
grams, granted a three-level adjustment for acceptance of responsibility, and thus
calculated a base offense level of 27 under the United States Sentencing Guidelines.
The district court then sentenced Mondragon-Hernandez to the minimum sentence
allowable under the 87 to 108-month range dictated by the then-mandatory guidelines
regime.

                                            II.
       Mondragon-Hernandez contends that under Blakely v. Washington, 124 S.Ct.
2531 (2004), and United States v. Booker, 125 S.Ct. 738 (2005), his guilty plea to the
indictment listing 50 grams or more quantity of methamphetamine dictates, after the
adjustment for acceptance of responsibility, a total offense level of 23 and a
maximum sentence of 71 months. The only factor in question is the amount of drugs
for which the district court found him responsible. Since no pertinent objection was
raised at trial, we review for plain error. Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731(1993). To find plain error, “there must be (1) ‘error,’ (2)
that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’” Johnson v. United States,

                                          -2-
520 U.S. 461, 467 (1997) (quoting Olano, 507 U.S. at 732). “If all three conditions
are met, an appellate court may then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.” U.S. v. Cotton, 535 U.S. 625, 631-32 (2002) (quoting
Johnson, 520 U.S. at 467).


       Booker requires 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 to a jury beyond a reasonable doubt.” 125 S.Ct. at 756. Mondragon-
Hernandez claims that the maximum sentence for the offense listed in the indictment
is 71 months.       Mondragon-Hernandez’s violation of § 841(a)(1) compels a
mandatory minimum sentence of 5 years’ imprisonment and permits a maximum term
of 40 years’ imprisonment. 21 U.S.C. § 841(b)(1)(B)(viii) (“In the case of a violation
of subsection (a) of this section involving…50 grams or more of a mixture or
substance containing a detectable amount of methamphetamine, its salts, isomers, or
salts of its isomers…such person shall be sentenced to a term of imprisonment which
may not be less than 5 years and not more than 40 years”). Counsel for Mondragon-
Hernandez stated at the sentencing hearing that his client had no factual objections
to the PSR, which referenced the 475.9-gram amount. Thus, he admitted this drug
quantity for purposes of Booker. See United States v. McCully, No. 04-1998, slip op.
at 3 (8th Cir. May 13, 2005) (citing Federal Rule of Criminal Procedure 32(i)(3) and
concluding that “a fact in the PSR not specifically objected to is admitted for
purposes of Booker”).2 At the plea hearing, both parties indicated that the ultimate


      2
        Moreover, the Supreme Court’s holding in Cotton establishes that Mondragon-
Hernandez’s claim would fail on the fourth factor of the Olano test. There, the
Supreme Court was faced with the question of whether that factor could be
established where the drug quantity for which the defendant was sentenced was
omitted from the indictment. The Court held that because the evidence that the

                                           -3-
guidelines range would likely reflect the 475-gram quantity referred to in the PSR.
Plea Tr. at 11.


       The district court did, however, commit Booker error by applying the
guidelines as mandatory. See United States v. Pirani, No. 03-2871, slip op. at 8 (8th
Cir. Apr. 29, 2005). We held in Pirani that “before we may consider whether to
exercise our discretion under the fourth Olano factor to review a forfeited Booker
error, the defendant must show a ‘reasonable probability,’ based on the appellate
record as a whole, that but for the error he would have received a more favorable
sentence.” Pirani, slip op. at 11. We require that this be shown in order to satisfy the
third factor of the Olano test. Mondragon-Hernandez has made no showing along
these lines whatsoever and the record does not suggest that he could do so. Although
the sentence imposed was at the bottom of the guidelines range, we have held this to
be insufficient to make such a showing. Pirani, slip op. at 12 (“sentencing at the
bottom of the range is the norm for many judges, so it is insufficient, without more,
to demonstrate a reasonable probability that the court would have imposed a lesser
sentence absent the Booker error”).


      The sentence is affirmed.
                        ______________________________




conspiracy involved at least 50 grams of cocaine base was “overwhelming” and
“essentially uncontroverted,” it could not conclude that the fairness, integrity, or
public reputation of the judicial proceedings had been affected. Cotton, 535 U.S. at
633-34. Given Mondragon-Hernandez’s statement at sentencing that he did not
dispute the PSR’s recitation of drug quantity, the 475-gram amount is more than
“essentially uncontroverted.”

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