                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    __________

                                    No. 03-3108
                                    __________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Gerald Phillip May, Jr.,                 *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: October 22, 2004
                                  Filed: July 13, 2005
                                   ___________

Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and SMITH, Circuit
Judges.
                         ___________

JOHN R. GIBSON, Circuit Judge.

       Gerald Phillip May, Jr., pleaded guilty to assault with intent to commit murder,
in violation of 18 U.S.C. §§ 113(a)(1), 1151, and 1153(a). May was sentenced to
ninety-seven months' imprisonment. He appeals his sentence and argues that the
district court1 erred in: (1) granting an upward departure, (2) ordering restitution in
an amount not supported by the evidence, and (3) sentencing him in violation of his
Sixth Amendment rights. We affirm.

      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
        May did not object to the following facts from the presentence report. On the
morning of August 28, 2002, Colleen Johns awoke to find May, her husband,
assaulting her. May slapped, punched, kicked, and choked her. He bit her all over
her body, threatened to kill her, and burned her chest with a cigarette. The assault
lasted approximately four hours. Eventually, Johns was able to reach a phone and
call 911 for help. Johns was taken to Red Lake Indian Health Service Hospital,
transferred to another hospital because of the seriousness of her injuries, and later
airlifted to the Fargo Merit Care Hospital. She suffered a subdural bleed in two
regions of her brain, a seizure, cuts to her mouth and face, numerous bite wounds and
cigarette burns, and she required approximately forty-seven stitches to her lip.

        The district court determined that the applicable guideline range was forty-six
to fifty-seven months, after the court applied a four-level increase for permanent or
life-threatening bodily injury and a three-level reduction for acceptance of
responsibility. May had a criminal history category of I. The court upwardly
departed five levels based upon U.S.S.G. § 5K2.3 for severe psychological injury and
§ 5K2.8 for extreme conduct. From the resulting range of seventy-eight to ninety-
seven months, the court sentenced May to ninety-seven months' imprisonment and
ordered him to pay $39,368.20 in restitution pursuant to the Mandatory Victims
Restitution Act of 1996. See 18 U.S.C. § 3663A (2000).

                                          I.

      May argues that the district court erred in applying an upward departure to his
sentence. The Supreme Court recently changed the way district courts are to apply
the federal sentencing guidelines and courts of appeals are to review sentences
imposed. United States v. Booker, 125 S. Ct. 738 (2005). The Court in Booker held
that a defendant's Sixth Amendment right is violated by "the imposition of an
enhanced sentence under the United States Sentencing Guidelines based on the

                                         -2-
sentencing judge's determination of a fact (other than a prior conviction) that was not
found by the jury or admitted by the defendant." Id. at 756. The Court recognized,
however, "If the Guidelines as currently written could be read as merely advisory
provisions that recommended, rather than required, the selection of particular
sentences in response to differing sets of facts, their use would not implicate the Sixth
Amendment." Id. at 750. In the remedial portion of the Booker opinion, the Supreme
Court excised the mandatory provision of the Guidelines and the provision that sets
forth the standard of review on appeal. Id. at 764.

       Although the Guidelines are no longer mandatory, the district court must still
consult the Guidelines and take them into account when sentencing. Id. at 767. In
reviewing whether the district court correctly determined the applicable Guideline
range, we continue to review the district court's findings of fact for clear error and its
interpretation and application of the Guidelines de novo. United States v. Mashek,
406 F.3d 1012, 1016-17 (8th Cir. 2005). The resulting sentence is reviewed for
reasonableness in light of the factors set forth in 18 U.S.C. § 3553(a). Booker, 125
S. Ct. at 765-66. Although our description of reasonableness review has differed
slightly from case to case,2 our cases have consistently agreed that Booker mandates


      2
        See United States v. Hadash, No. 03-2180, 2005 WL 1250331, *1 (8th Cir.
May 27, 2005) (reviewing "whether the sentence chosen by the district court was
reasonable in light of all the § 3553(a) factors"); United States v. Fogg, No. 04-2723,
2005 WL 1186535, *2 (8th Cir. May 20, 2005) ("We review for abuse of discretion
the decision to depart upward from the guidelines, and we review the extent of the
departure for reasonableness."); Mashek, 406 F.3d at 1017 ("we will review a district
court's decision to depart from the appropriate guidelines range for abuse of
discretion" and in determining whether the sentence was reasonable, the court
reviewed whether the "decision to grant a § 3553(a) variance from the appropriate
guidelines range [was] reasonable" and whether the extent of the variance or
departure was reasonable); United States v. Dalton, 404 F.3d 1029, 1032 (8th Cir.
2005) (concluding "that the district court abused its discretion by imposing an
unreasonable sentence"); United States v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005)

                                           -3-
a review for reasonableness with regard to the section 3553(a) factors. If any
inconsistency exists among the standards articulated by this Court, we need not
resolve it today, for May's sentence is reasonable and not an abuse of the court's
discretion under any formulation.

       We first address the district court's departure for severe psychological injury
under U.S.S.G. § 5K2.3, which authorizes the court to increase the defendant's
sentence above the guideline range if the victim "suffered psychological injury much
more serious than that normally resulting from commission of the offense." The
amount of the increase ordinarily depends on the severity of the injury as well as the
extent to which the injury was intended or knowingly risked. U.S.S.G. § 5K2.3. The
departure normally applies:

      only when there is a substantial impairment of the intellectual,
      psychological, emotional, or behavioral functioning of a victim, when
      the impairment is likely to be of an extended or continuous duration, and
      when the impairment manifests itself by physical or psychological
      symptoms or by changes in behavior patterns. The court should
      consider the extent to which such harm was likely, given the nature of
      the defendant's conduct.

Id.

     The district court found that Johns suffered a severe psychological injury,
which was much more serious than would normally result from the commission of



("Our prior articulations of the abuse of discretion standard are wholly consistent with
the concept of reasonableness as set forth in Booker."); United States v. Pizano, 403
F.3d 991, 995 (8th Cir. 2005) ("To make the reasonableness determination, we ask
whether the district court abused its discretion."); United States v. Yahnke, 395 F.3d
823, 824-26 (8th Cir. 2005) (noting review was for unreasonableness, but ultimately
concluding that sentence was neither unreasonable, nor an abuse of discretion).

                                          -4-
assault with intent to commit murder. The effects of her "extremely life-threatening"
injury were likely to be permanent and could "easily be exacerbated in the future."
The court also noted that the assault had caused "tremendous damage to Johns and
to others."

       These findings are well-supported by the record and are not clearly erroneous.
At the sentencing hearing, Johns testified about the extent of her injuries. She
explained that she has experienced headaches, lack of concentration, both short-term
and long-term memory loss, and she has not been able to continue her career as a
registered nurse. Johns's mother also testified that since the assault Johns has had
headaches, memory loss, depression, and her personality has become more distant.
Johns's doctors testified that Johns's head trauma was the likely cause of the
headaches, memory loss, and increased depression Johns had been experiencing since
the assault.

       May claims that Johns's memory loss cannot provide a basis for the departure
because memory loss was already taken into consideration by the four-level
enhancement under U.S.S.G. § 2A2.1(b)(1)(A), which applies if the victim sustained
either "permanent" or "life-threatening bodily injury." The district court found that
Johns sustained both permanent and life-threatening injury. The record does not
indicate that the district court based both the enhancement and the departure on
memory loss. The enhancement is sufficiently supported by the district court's
findings that (1) Johns's injuries were "extremely life-threatening," (2) the assault
"could have resulted in death," and (3) the effects of her injury were "likely
permanent." Testimony at the sentencing hearing addressed Johns's headaches,
memory loss, depression, changed personality, and her inability to continue her career
as a registered nurse. That testimony supports the district court's finding that Johns's
sustained a "severe psychological injury," beyond the injury typical of the charged
assault. In essence, the district court found that Johns's injuries fell outside the
heartland of the charged offense.

                                          -5-
       Even if the district court had relied on the memory loss for both the
enhancement and the departure, this form of "double-counting" is permissible under
the Guidelines. See United States v. Thin Elk, 321 F.3d 704, 708 (8th Cir. 2003). A
departure is permitted where the Guidelines do not adequately take into consideration,
either in kind or to a degree, an aggravating circumstance. See U.S.S.G. §
5K2.0(a)(1). The district court's finding that Johns's injuries were beyond those
typical of the offense was not clearly erroneous and we cannot say that its departure
was unreasonable.

      Second, May claims that some degree of emotional damage, change in
behavior, and impairment is always involved in cases of domestic assault and must
have been inherent in May's guideline sentence. This is a variation of May's "double-
counting" argument above. May's argument lacks merit. His convicted offense was
assault with intent to commit murder, not domestic assault, and he provides no
support for his assertion that assault with intent to commit murder inherently involves
the severe psychological consequences that Johns experienced.

       The district court's departure was also based, in part, on May's extreme conduct
pursuant to U.S.S.G. § 5K2.8. That section permits an increased sentence if "the
defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim."
Id. Examples of extreme conduct include "torture of a victim, gratuitous infliction
of injury, or prolonging of pain or humiliation." Id. May argues that his conduct was
not sufficiently cruel or heinous to support a departure for extreme conduct.

      In United States v. Lewis, 235 F.3d 394, 397-98 (8th Cir. 2000), the defendant
pleaded guilty to harboring an illegal alien, and the district court found that the Lewis
family had forced the alien to turn over his outside wages as well as work as its
household servant. Id. at 395. In support of its decision to depart, the district court
found


                                          -6-
      [the alien] was repeatedly physically beaten, tormented, and sexually
      abused. He was degraded, humiliated, and psychologically controlled,
      manipulated, and restrained to the point where he could no longer think
      rationally about his own well-being. He was deprived of nourishment
      and medical care. Because of the abuse he suffered, he lost all hope and
      was too afraid to leave . . .

Id. at 396. We affirmed the district court's twelve-level upward departure based, in
part, on its findings of severe psychological injury and extreme conduct.

       The record reveals that May similarly engaged in cruel and heinous conduct.
Johns testified that May dragged her out of bed by her hair and dragged her from
room to room. He punched her in the face, kicked her in the back, and choked her.
May ripped off her bra and underwear, leaving her completely naked. During the
course of the three to four hour attack, Johns lost consciousness at least three times.
May bit her lip so hard that she required forty-seven stitches, and he burned her at
least five times with a cigarette. Johns testified that May's repeated beatings
throughout their relationship sent her to the hospital several times. May admitted to
many of the facts of the charged assault and presented no evidence to the contrary.
May's conduct, like that in Lewis, was long-term, and it was degrading, abusive, and
controlling. The district court specifically found that the three to four hour duration
of the assault and multiple bites showed extreme conduct. The record reflects
extensive support for the district court's statement that "it's hard to imagine a situation
that would have the sort of lack of dignity and degrading nature as being naked and
being bit many, many times, being treated much as an angry animal would treat
another." The district court's decision to depart on the basis of extreme conduct was
not unreasonable.

      May additionally argues that the court's five-level departure from the guideline
range was excessive because his sentence range already included a four-level
enhancement for Johns's permanent injuries. He provides no case law or further

                                           -7-
analysis to support his contention. This argument is without merit. The district
court's bases for departure are sufficiently supported by the record and the district
court committed no error.

       Because the district court sentenced May before the Supreme Court issued its
opinion in Booker, the court did not specifically discuss its analysis of the factors
listed in 18 U.S.C. § 3553(a). However, our review of these statutory factors leads
us to conclude that they support the reasonableness of the district court's sentencing
decision. See Pizano, 403 F.3d at 996. Of prime importance in the court's decision
to depart were the "nature and circumstances of the offense" and the "seriousness of
the offense," and the district court also discussed May's need for a substance abuse
treatment program. See § 3553(a)(1), (2)(A), & (2)(D). Finally, the district court
considered the need for the sentence it imposed to afford adequate deterrence and to
protect the public from May committing further crimes. See § 3553(a)(1)(B), (C).
The district court's departure and May's resulting sentence were not unreasonable in
light of the section 3553(a) factors.

                                           II.

       May argues in a supplemental brief that the district court's sentence violates his
constitutional rights because it was based in part on judicial fact-finding. May filed
his supplemental brief after the Supreme Court issued its decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004), but before United States v. Booker, 125 S. Ct.
738 (2005). May did not raise the issue in any manner before the district court. A
Booker argument is not preserved unless "the defendant below argued Apprendi or
Blakely error or that the Guidelines were unconstitutional." United States v. Pirani,
406 F.3d 543, 551(8th Cir. 2005) (quoting United States v. Antonakopoulos, 399 F.3d
68, 76 (1st Cir. 2005)). May concedes that plain error review is appropriate. Id.




                                          -8-
       The plain error standard requires "(1) error, (2) that is plain, and (3) that affects
substantial rights." Johnson v. United States, 520 U.S. 461, 466-67 (1997). If those
conditions are met, an appellate court may exercise its discretion to notice a forfeited
error, but only if "(4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings." Id. It is the defendant's burden to prove plain
error occurred. Pirani, 406 F.3d at 550.

       The defendant must first show that an error occurred that is plainly contrary to
the law at the time of appeal. Id.; see Johnson, 520 U.S. at 468 ("[W]here the law at
the time of trial was settled and clearly contrary to the law at the time of appeal – it
is enough that an error be 'plain' at the time of appellate consideration."). With
respect to imposing a sentence under a mandatory Guidelines application, the district
court did commit a plain error. Pirani, 406 F.3d at 550. However, May's argument
is that the district court improperly departed from the sentence prescribed by the
Guidelines. A departure is not mandated by the Guidelines, but is within the court's
discretion. It is unclear whether the decision to depart, alone, is a decision made
under a "mandatory Guidelines regime." Id. at 551. Assuming, arguendo, that May
could establish a Booker error, he still could not prevail under plain error review.

       Even if the district court committed plain error, May has not established that
the error affects his substantial rights. May has the burden of showing, with
reasonable probability, that he would have received a more favorable sentence had
the district court considered the Guidelines advisory. Id. He cannot meet this burden.

       In Pirani, the district court sentenced him at the bottom of the Guidelines range,
avoided enhancements that would make his sentence "too high," and allowed Pirani
to serve half of his sentence in home confinement rather than in prison. Id. at 553.
Additionally, the judge twice expressed her dislike of the Guidelines, though this
Court held those statements to be irrelevant. Id. at 553 n.6. In contrast, May's
sentence was at the top of the applicable Guidelines range after the court applied a

                                            -9-
four-level enhancement and a five-level upward departure. The fact that the district
court exercised its discretion to depart upward five levels makes it unlikely that the
court would lower the sentence if given more discretion. See, e.g., United States v.
Cunningham, 405 F.3d 497, 505 (7th Cir. 2005). The record provides no basis to
conclude that there is a reasonable probability that May would receive a more
favorable sentence under advisory guidelines. No plain error occurred.

                                            III.

        May argues that the evidence does not support the order of restitution included
in the judgment. The presentence report recommended restitution in the amount of
$39,368.20, based on a Victim Impact Statement completed by the Minnesota Center
for Crime Victim Services. May objected to the restitution amount for the first time
at the sentencing hearing. Although Johns testified about her injuries at that hearing,
she did not testify about the cost of her medical care, and the record contains no such
evidence. The district court adopted the restitution amount from the presentence
report without requiring any additional information regarding her medical bills.

       We review a district court's finding of loss relating to restitution for clear error.
United States v. Young, 272 F.3d 1052, 1056 (8th Cir. 2001). Federal Rule of
Criminal Procedure 32(f)(1) states, "Within 14 days after receiving the presentence
report, the parties must state in writing any objections, including objections to
material information, sentencing guidelines ranges, and policy statements contained
in or omitted from the report." May's objection to the restitution amount was
untimely under Rule 32 because the sentencing hearing took place well after Rule
32(f)(1)'s fourteen-day time limit.

       Where a defendant makes a specific objection to a statement in the presentence
report, the district court is obliged to resolve the factual dispute. United States v.
Stapleton, 268 F.3d 597, 598 (8th Cir. 2001). In that situation, the court is bound to

                                           -10-
make that finding on the basis of the evidence and cannot rely solely on the
presentence report. Id. (quoting United States v. Greene, 41 F.3d 383, 386 (8th Cir.
1994)).

       However, a district court may regard as true facts contained in the presentence
report to which no specific objection is made. United States v. Cole, 357 F.3d 780,
783 (8th Cir. 2004) (citations omitted). Rule 32(i)(3)(A) allows the district court to
"accept any undisputed portion of the presentence report as a finding of fact." The
question before us is whether an untimely objection to a statement in the presentence
report makes that statement "disputed," and in need of evidentiary support outside the
presentence report.

       The reason for the fourteen-day filing requirement is "so that the objections can
be addressed and investigated prior to the sentencing hearing." United States v.
Jones, 70 F.3d 1009, 1010 (8th Cir. 1995) (emphasis added). If a defendant is
allowed to wait until the sentencing hearing to object to the presentence report, the
government would have no notice of the need to present evidence in response to the
objection. The district court has no obligation to consider an objection to the
presentence report that is untimely because it is raised for the first time at sentencing.
See, e.g., Jones, 70 F.3d at 1009-10. Together, Rules 32(f)(1) and 32(i)(3)(A)
establish that an untimely objection to a fact in the presentence report does not change
the fact's "undisputed" status, and the district court may adopt the fact without
requiring any additional evidence. The district court committed no error in adopting
the restitution amount contained in the presentence report.

       May also argues that the district court committed a constitutional error in
ordering a restitution amount that was not proven beyond a reasonable doubt. The
basis for May's argument is the Supreme Court's statement, "Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable

                                          -11-
doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); see United States v.
Booker, 125 S. Ct. 738 (2005) (applying Apprendi rule to federal sentencing
guidelines). May admits, however, that restitution does not have a "statutory
maximum." Even if May could show a Booker error, he would not succeed under
plain error analysis.

       Neither the Supreme Court nor this Court has addressed whether Booker
applies to restitution orders, so any error made by the district court cannot be "plain"
error. See United States v. DeSoto, No. 04-12307, 2005 WL 901878, *6 (11th Cir.
Apr. 19, 2005). No circuit has so held, and several circuits have affirmatively
rejected the notion that Apprendi, Blakely, or Booker affect the manner in which
findings of restitution can be made. See United States v. Swanson, 394 F.3d 520, 526
(7th Cir. 2005); United States v. DeGeorge, 380 F.3d 1203, 1221 (9th Cir. 2004);
United States v. Wooten, 377 F.3d 1134,1144 n.1 (10th Cir. 2004). These cases are
persuasive.

      We affirm the district court's sentence.
                      ______________________________




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