                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                   No. 03-3870
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the District
                                       * of Nebraska.
Pedro Soltero                          *
                                       *     [UNPUBLISHED]
            Defendant - Appellant.     *
                                  ___________

                             Submitted: July 22, 2004
                                 Filed: July 20, 2005
                                 ___________

Before MELLOY, LAY, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       Pedro Soltero violated four conditions of his pretrial release. One of these
violations was his failure to appear in court in December 2000. After these repeated
violations, a warrant was issued for his arrest. The warrant was outstanding and he
remained at large for over two years. In January 2003, he surrendered to authorities.
Following his surrender, he cooperated and pled guilty to conspiracy to distribute
between 100 and 400 kilograms of marijuana.
       At sentencing, the district court1 found Soltero’s base offense level under the
Sentencing Guidelines to be 26. It then granted a two-level reduction for his minor
role in the offense, imposed a two-level enhancement for obstruction of justice, and
denied a two-level reduction for acceptance of responsibility. Mr. Soltero’s Criminal
History was Category I and the resultant Sentencing Guidelines range was 63-78
months. The district court imposed a sentence of 63 months.

       Mr. Soltero appeals, arguing that his case is “extraordinary” under U.S.S.G. §
3E1.1 cmt. 4 and United States v. Honken, 184 F.3d 961 (8th Cir. 1999), such that he
deserves an acceptance of responsibility reduction in addition to the obstruction of
justice enhancement. He also challenges his sentence under United States v. Booker,
125 S.Ct. 738 (2005) and Blakely v. Washington, 124 S.Ct. 2531 (2004). We review
for clear error the district court’s finding as to whether Mr. Soltero’s case is
“extraordinary” under Honken. We review the Booker/Blakely issue, which Mr.
Soltero raised for the first time on appeal, only for plain error. United States v.
Pirani, 406 F.3d 543, 552 (8th Cir. 2005).2

       The Guidelines make clear that, given extraordinary facts, it is possible to
apply an enhancement for obstruction of justice and a reduction for acceptance of
responsibility when calculating a sentence. See U.S.S.G. § 3E1.1 cmt. 4 (“Conduct
resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the
Administration of Justice) ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct. There may, however, be extraordinary cases


      1
       The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
      2
       In a supplemental, pro se brief, Mr. Soltero raised additional issues regarding
interpretation of the drug control provisions of the federal criminal code. His
arguments in this regard are entirely frivolous and do not merit further discussion.
We deny his pending motion to amend his supplemental, pro se brief.

                                         -2-
in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.”). The Guidelines
do not define “extraordinary,” but we have interpreted this term, as used by the
Sentencing Commission, to mean “a situation that is extremely rare and highly
exceptional.” Honken, 184 F.3d at 970.

     In Honken, we set forth a totality of the circumstances test for determining
whether a case was extraordinary. We stated that district courts should take into
account:

      the totality of the circumstances, including the nature of the
      [defendant’s] obstructive conduct and the degree of [defendant's]
      acceptance of responsibility. . . whether, for example, the obstruction of
      justice was an isolated incident early in the investigation or an on-going
      effort to obstruct the prosecution . . . whether [the defendant] voluntarily
      terminated his obstructive conduct, or whether the conduct was stopped
      involuntarily by law enforcement . . . whether [the defendant] admitted
      and recanted his obstructive conduct, or whether he denied obstruction
      of justice at sentencing [and] not only whether the defendant pleaded
      guilty to the underlying offense but also whether he assisted in the
      investigation of his offense and the offenses of others.

Id. at 968. Here, Mr. Soltero repeatedly violated the conditions of his pretrial release,
failed to appear in court, and ultimately spent over two years on the run. It is clear,
then, that he substantially impeded the administration of justice over an extended
period of time. His obstruction was not an isolated incident. He surrendered, but at
the time of his surrender, there was a warrant for his arrest that remained outstanding.
He has identified no unusual or compelling circumstances that might justify his
actions. Similarly, he has identified nothing to suggest that his eventual surrender
and subsequent cooperation amounted to more than a cessation of obstructive conduct
followed by a plea of guilty. The burden to prove that a case is extraordinary is a
heavy burden, and the district court did not err when it found that Mr. Soltero’s case
was not extraordinary.

                                          -3-
        Regarding our plain error review of Mr. Soltero’s sentence under Booker and
Blakely, Mr. Soltero must show that district court’s understandable error—
application of the Guidelines as mandatory in 2003—affected his substantial rights.
Pirani, 406 F.3d at 552. To make this showing, he must demonstrate a reasonable
probability that the district court would have granted a more favorable sentence had
it not treated the Guidelines as mandatory. Id.

       Here, the district court imposed a bottom-of-the-range Guidelines sentence.
There is nothing else to suggest that the district court would have granted a lesser
sentence had it treated the Guidelines as advisory rather than mandatory. In Pirani,
we held that a sentence at the bottom of the Guidelines range is insufficient, standing
alone, for a defendant to make the required showing of prejudice. Id. at 553 (“But
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.”). Accordingly, Pirani forecloses
relief on the present facts.

      We affirm the judgment of the district court.
                           ______________________________




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