                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2709
                                    ___________
United States of America,                 *
                                          *
             Appellee,                    *
                                          *   Appeal from the United States
      v.                                  *   District Court for the Southern
                                          *   District of Iowa.
Crystal Antoinette Harris,                *
                                          *   [UNPUBLISHED]
             Appellant.                   *
                                    ___________

                              Submitted: April 10, 2007
                                 Filed: April 16, 2007
                                  ___________

Before MELLOY, BOWMAN, and GRUENDER, Circuit Judges.
                         ___________

PER CURIAM.

       Crystal Harris entered a plea of guilty to four counts of distributing cocaine
base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The district court1 sentenced
her to 151 months’ imprisonment and three years’ supervised release. She now
appeals, arguing she was entitled to be sentenced by the same judge who received her
plea. She also argues her advisory Guidelines range was based on clearly erroneous
factual findings, her sentence was impermissibly based on facts neither necessary for
the conviction nor found by a jury, her overall sentence was unreasonable, and her



      1
       The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
sentence was based on a grand jury’s special findings that the government had agreed
to strike from the indictment. We affirm.

I.    Background

      A grand jury returned a superseding indictment against Harris, finding probable
cause to believe she had distributed cocaine base on four different dates between
September 23 and October 10, 2002. The superseding indictment included special
findings by the grand jury alleging Harris had distributed between 500 grams and 1.5
kilograms of cocaine base.

        During pretrial proceedings and negotiations that led to a change of plea, the
Honorable Ronald E. Longstaff, United States District Judge for the Southern District
of Iowa, granted a motion in limine filed by Harris to exclude the testimony of two
witnesses, Jilisha Walton and Rosemary Christian. These witnesses would have
testified regarding prior drug sales by Harris. Harris also moved to strike the special
findings from the indictment. The government consented to the motion to strike, and
Judge Longstaff granted the motion. After these motion proceedings, Harris agreed
to plead guilty. The government agreed to recommend a sentence at the bottom of the
advisory Guidelines range.

       On August 29, 2005, Judge Longstaff received Harris’s plea. In the colloquy
surrounding her plea, Harris admitted to selling a total of 7.8 grams of cocaine base
to a woman named Letisha Williams over the course of four separate transactions. At
the end of the hearing, when dealing with logistical matters such as the preparation of
a presentence report and scheduling for a sentencing hearing, Judge Longstaff notified
counsel another judge might preside over Harris’s sentencing. Counsel made no
objection at that time. Prior to sentencing, the case was transferred to the docket of
the Honorable Robert W. Pratt, Chief Judge, United States District Court for the
Southern District of Iowa.

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       In the presentence report, the probation officer attributed between 150 and 500
grams of cocaine base to Harris for a base offense level of thirty-four. The probation
officer recommended a two-level, aggravated role enhancement and a three-level
reduction for acceptance of responsibility, for a total offense level of thirty-three.
With a criminal history category of II, the resultant advisory range recommended in
the presentence report was 151 to 188 months’ imprisonment. Counsel for Harris
objected to the drug quantity and role enhancement recommendations, arguing they
were not supported by Harris’s admitted offense conduct.

      Judge Pratt presided over Harris’s sentencing hearing on June 26, 2006, and
Harris made no objection to having Judge Pratt, rather than Judge Longstaff, conduct
the hearing. Harris did object to the presentation of evidence regarding drug quantity
and the aggravated role enhancement. At the hearing, Judge Pratt received an
affidavit from Jilisha Walton and heard testimony from witnesses, including Letisha
Williams. Counsel for Harris again objected to the presentation of any evidence
regarding drug quantity, offense conduct, or relevant conduct beyond the conduct
admitted by Harris in her plea hearing. Counsel for Harris elected not to cross-
examine Jilisha Walton even though the government repeatedly noted Walton was
present and available to testify.

      Williams and Walton were informants for the police. Williams testified she
purchased crack from Harris daily over an extended period of time. Williams did not
quote a specific quantity in terms of grams, but described her purchases in dollar
amounts, described the frequency of her purchases, and described her interactions with
Harris. Walton stated that Harris recruited her to help sell crack, Harris used her to
deliver crack on over twenty-five occasions, and Harris used her home to distribute
crack to two or three users per week. Taken together, Williams’s testimony and
Walton’s affidavit clearly demonstrated Harris had distributed at least 150 to 500
grams of cocaine base. This evidence also clearly demonstrated Harris exercised



                                         -3-
control over, directed, or supervised at least one other participant in the illegal
conduct.

       Judge Pratt determined, based in large part on the information provided by
Williams and Walton, that Harris had distributed between 150 and 500 grams of
cocaine base and that Harris deserved the two-level, aggravating role enhancement
because she “was an organizer, leader, manager, or supervisor” in the criminal
activity. He found the advisory Guidelines range to be 151 to 188 months as
recommended in the report, considered the 18 U.S.C. § 3553(a) factors, and imposed
a sentence at the bottom of this range.

II.   Discussion

       On appeal, Harris argues that she was entitled to have Judge Longstaff preside
at her sentencing and that Judge Pratt was biased in favor of the government. This
argument is wholly without merit. There is no evidence Judge Pratt was biased in any
manner, and a defendant has no right to be sentenced by a particular judge. United
States v. Urben-Potratz, 470 F.3d 740, 744-45 (8th Cir. 2006).

       The remainder of Harris’s arguments fall into three categories. First, counsel
for Harris presents a series of arguments related generally to United States v. Booker,
543 U.S. 220 (2005). Second, counsel attacks Judge Pratt’s findings and the
procedure followed at the sentencing hearing. Finally, counsel alleges the government
breached an agreement with Harris by introducing at the sentencing hearing evidence
of offense conduct and relevant conduct beyond that admitted by Harris at her plea
hearing.

       Regarding the Booker-related arguments, counsel for Harris misconstrues the
procedural framework for sentencing post-Booker. It is now well established that the
court is to make factual findings necessary for advisory Guidelines calculations, these

                                         -4-
findings are to be made using the preponderance of the evidence standard, and the
sentencing court is to use the advisory Guidelines range as one of the sentencing
factors under 18 U.S.C. § 3553(a). United States v. Thundershield, 474 F.3d 503,
506-07 & n.7 (8th Cir. 2007) (applying preponderance standard in relation to an
obstruction of justice enhancement); United States v. No Neck, 472 F.3d 1048, 1055
(8th Cir. 2007) (noting after Booker that even “[a]cquitted conduct may be used for
sentencing purposes if proved by a preponderance of the evidence”); United States v.
Sandoval-Rodriguez, 452 F.3d 984, 990-91 (8th Cir. 2006) (explaining sentencing
procedure in accordance with the remedy set forth in Booker). Counsel for Harris
ignores the remedial provisions of the Court’s Booker opinion and all of our precedent
following Booker which establishes this framework. Counsel insists, instead, that
Booker requires a jury to make all findings relevant to the Guidelines. Because we
have repeatedly addressed this basic misconception and consistently rejected
arguments similar to those raised by counsel, we need not address all of counsel’s
related arguments individually.

       Regarding the specific factual findings made by the sentencing judge, our
review is for clear error. Thundershield, 474 F.3d at 507. As already noted, there was
more than adequate support for the findings related to the drug quantity and the role
enhancement. Harris argues that reliance on Walton’s affidavit to make sentencing
findings violated her confrontation rights. This argument fails because Walton was
available for cross-examination, and counsel for Harris simply chose not to examine
her. Also, Judge Pratt considered the appropriate factors under 18 U.S.C. § 3553(a),
and we find the overall sentence imposed to be reasonable. Although counsel cites
one passage from the sentencing transcript in which Judge Pratt appeared to refer to
the Guidelines as mandatory, Judge Pratt subsequently clarified his view, clearly
acknowledged the advisory nature of the Guidelines, and noted his consideration of
the sentencing factors.




                                         -5-
       Finally, counsel appears to argue that when the government agreed to strike the
special findings from the indictment, the government necessarily agreed that any and
all conduct other than that admitted by Harris at the plea hearing would not and could
not be used for sentencing purposes. Even if the government had the authority to so
limit what a sentencing court may consider in making necessary findings under the
Guidelines, there is simply no evidence of such an agreement in the present case.
Harris admitted in her plea hearing that the only promise she received from the
government was a promise to recommend a sentence at the bottom of the Guidelines
range. Further, the special findings from the grand jury were of a drug quantity
between 500 grams and 1.5 kilograms, whereas Harris’s sentence was based on a drug
quantity finding of 150 to 500 grams. Accordingly, even if there were any merit to
counsel’s argument, the resultant sentence in this case was not based in any manner
on the quantity set forth in the stricken grand jury findings.

      We have considered the other arguments raised by Harris and find them to be
without merit.

      The judgment of the district court is affirmed.
                     ______________________________




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