                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                              ________________

                                 No. 04-3438
                              ________________

United States of America,               *
                                        *
            Appellee,                   *
                                        *      Appeal from the United States
      v.                                *      District Court for the
                                        *      District of Nebraska.
David H. Archuleta,                     *
                                        *          [PUBLISHED]
            Appellant.                  *

                              ________________

                              Submitted: March 14, 2005
                                  Filed: June 28, 2005
                              ________________

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

HANSEN, Circuit Judge.

       David H. Archuleta appeals the sentence imposed by the district court1
following Archuleta’s guilty plea to one count of mail fraud, 18 U.S.C. § 1341
(2000), and argues that the enhancements to his sentence imposed under the United
States Sentencing Guidelines (Guidelines) violated his Sixth Amendment rights. We
affirm the judgment of the district court.


      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
                                           I.

      Archuleta was a long-time employee of the Union Pacific Railroad (UPRR),
where he was the Purchasing Manager of Special Equipment. He and co-defendant
Raymond Kyral devised a scheme to defraud UPRR by causing UPRR to pay
materially false invoices submitted by a company owned by Kyral and approved for
payment by Archuleta. Kyral then gave Archuleta a kickback from the fraudulent
scheme. The two men defrauded UPRR of approximately $1.5 million over a four-
year period.

       The government charged Archuleta with three counts of mail fraud. Archuleta
pleaded guilty on December 30, 2003, to Count I of the indictment, and the
government agreed to dismiss the remaining mail fraud counts. The probation office
prepared a presentence investigation report (PSR) which recommended: a twelve-
level enhancement for a loss of more than $1.5 million and less than $2.5 million,
USSG § 2F1.1(b)(1)(M) (Nov. 1998); a two-level enhancement for an offense
involving more than minimal planning, USSG § 2F1.1(b)(2)(A); a two-level
enhancement for Archuleta’s aggravating role in the offense, USSG § 3B1.1(c); and
a two-level enhancement for abuse of a position of trust, USSG § 3B1.3. Archuleta
objected to these four paragraphs of the PSR on the basis that the Supreme Court’s
then-recently decided case of Blakely v. Washington, 124 S. Ct. 2531 (2004), applied
to the Guidelines and required that the facts supporting the proposed enhancements
had to be proved to a jury beyond a reasonable doubt rather than decided by a judge.



      At the sentencing hearing, Archuleta stipulated that the government could
prove by a preponderance of the evidence that the amount of the loss ranged between
$800,000 and $1.5 million (resulting in an eleven-level rather than a twelve-level
enhancement), that he abused a position of public or private trust, and that the offense
involved more than minimal planning. He maintained his argument, however, that

                                          -2-
the enhancements had to be proved to a jury beyond a reasonable doubt under
Blakely. The district court sustained Archuleta’s objection to the two-level
aggravating role enhancement but overruled the remaining objections, subject to the
adjusted eleven-level enhancement for the amount of the loss. The district court
refused to declare the guidelines unconstitutional and sever the allegedly offending
enhancements as requested by Archuleta. The district court sentenced Archuleta to
27 months imprisonment, the bottom of the relevant Guidelines range based on the
stipulated facts. The district court stated that it would have imposed the same
sentence if the Guidelines were found to be unconstitutional as a whole and it was
bound only by the statutory range of zero to five years. Archuleta appeals his
sentence.

                                          II.

       The Supreme Court has now extended its Blakely holding to the United States
Sentencing Guidelines, holding that application of mandatory Guideline sentencing
enhancements based on judge-found facts violates a defendant’s Sixth Amendment
rights. See Booker v. United States, 125 S. Ct. 738, 756 (2005). In Justice Breyer’s
remedial opinion, the Court remedied the Sixth Amendment violation by severing the
statutory provisions making the Guidelines mandatory, thus leaving the Guidelines
in place but placing them in an advisory status rather than binding mandates. See id.
at 756-57 (excising 18 U.S.C. § 3553(b)(1) (making the guidelines mandatory) and
18 U.S.C. 3742(e) (prescribing appellate standards of review)).

       We review Archuleta’s preserved challenge for harmless error. See United
States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc) (holding that one way
Booker error is preserved is if the defendant argued Blakely below). For purposes of
this opinion, we assume that Archuleta’s sentence violated the Sixth Amendment
despite his stipulation of the underlying facts to a preponderance of the evidence
because he challenged the identity of the fact finder as well as the standard of proof.

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See Booker, 125 S. Ct. at 748-49 (characterizing the Sixth Amendment violation as
the determination by a judge, as opposed to a jury, of facts that increase a defendant’s
punishment under a mandatory Guideline regime); see also United States v. Huber,
404 F.3d 1047, 1063-64 (8th Cir. 2005) (noting that the defendant “at least has an
argument under Apprendi” where the jury made its loss finding based on the
preponderance of the evidence rather than beyond a reasonable doubt). Our review
would be the same whether we were addressing a Sixth Amendment challenge or a
challenge to the use of mandatory, as opposed to advisory, guidelines. See Pirani,
406 F.3d at 552-53 (noting the two distinct types of Booker error); United States v.
Bassett, 406 F.3d 526, 527 (8th Cir. 2005) (applying harmless error review to
conceded Sixth Amendment error). We note that at least one circuit remands without
applying harmless error analysis if a case involves a Sixth Amendment error. See
United States v. Akpan, 407 F.3d 360, 376 & n.55 (5th Cir. 2005) (noting divergent
views between Sixth Circuit and D.C. Circuit). We, of course, will follow our circuit
precedent and apply harmless error review to both types of Booker error.

      Federal Rule of Criminal Procedure 52(a) dictates that “[a]ny error . . . that
does not affect substantial rights must be disregarded.” To establish that the
sentencing error was harmless, the government must establish beyond a reasonable
doubt that the error did not affect Archuleta’s ultimate sentence. In other words, the
government must establish beyond a reasonable doubt that the district court would
not have sentenced Archuleta to a lower sentence had it correctly applied the post-
Booker regime. See Neder v. United States, 527 U.S. 1, 15 (1999) (defining the test
for whether a Sixth Amendment violation is harmless as “whether it appears ‘beyond
a reasonable doubt that the error complained of did not contribute to the verdict
obtained’”) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)); Bassett, 406
F.3d at 527 (concluding that “the Sixth Amendment error did not affect the ultimate
sentence and was harmless beyond a reasonable doubt”).




                                          -4-
       Under the post-Booker advisory system, the Federal Sentencing Act “requires
a sentencing court to consider Guidelines ranges, but it permits the court to tailor the
sentence in light of other statutory concerns as well.” Booker, 125 S. Ct. at 757
(internal citations omitted). Although the district court refused to find the Guidelines
unconstitutional, it gave Archuleta an alternative sentence, stating that “if the
Guidelines are declared unconstitutional, as a whole, rather than simply those parts
which may be severable under your theory, . . . I would be sentencing within the
statutory limits. And it would be my intention to sentence at the same level at which
I am going to be sentencing today if I were operating within the statutory limits.”
(Sent. Tr. at 6.) After calculating Archuleta’s Guidelines range based on the
stipulated facts, the district court explicitly referenced the non-guideline factors in §
3553(a), as well as Archuleta’s acceptance of responsibility and the plea agreement,
in setting his sentence. (Id. at 12.) The district court chose the bottom of the
sentencing range in the belief that it would “serve the purposes of both [sic] general
deterrence, specific deterrence, and an opportunity for the defendant to participate in
appropriate programs within the Bureau of Prisons.” (Id. at 13.)

       Although the district court’s alternative sentence presumed that the Guidelines
as a whole were unconstitutional, the alternative sentence satisfies Booker’s
requirements. The district court calculated Archuleta’s Guidelines range and then
considered the other statutory factors in setting Archuleta’s sentence. The court
explicitly stated that it would have imposed the same sentence if not bound by the
Guidelines, effectively treating them as advisory. Further, there is no evidence in this
record to support a different sentence when consideration is given to the other
statutory factors. Thus, the government has established beyond a reasonable doubt
that Archuleta would not have received a lower sentence had the district court applied
the sentencing regime required by Booker. See Bassett, 406 F.3d at 527 (holding that
Sixth Amendment error in sentencing defendant based on enhancements not admitted
or found by a jury was harmless where the district court announced an alternative
sentence after considering all of the § 3553(a) factors); United States v. Marcussen,

                                           -5-
403 F.3d 982, 985 (8th Cir. 2005) (holding that sentencing the defendant under
mandatory Guidelines was harmless where the district court gave an alternate
sentence and considered other § 3553(a) factors); United States v. Thompson, 403
F.3d 533, 535-36 (8th Cir. 2005) (same).

      Post-Booker, we review a district court’s sentence for reasonableness. See
Booker, 125 S. Ct. at 765-66. While we have not yet held that a sentence within a
correctly calculated Guideline range is reasonable per se, Archuleta has put forth no
reason to establish that he should have been sentenced outside of that range.
Considering the record as a whole, the § 3553(a) factors, and the district court’s
careful analysis, we believe that a 27-month sentence for mail fraud related to a
scheme to defraud one’s employer of nearly $1.5 million over a four-year period was
reasonable.

       During oral argument, Archuleta suggested that the enhancements to his
sentence violated his due process rights because the enhancements increased his
sentence to such an extent that the enhancements became the “tail which wags the
dog of the substantive offense.” McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)
(upholding a state statute that set the mandatory minimum sentence for certain
enumerated offenses at five years based on the judge’s determination by a
preponderance of the evidence that the defendant visibly possessed a gun in
connection with the underlying offense). Because Archuleta raised this McMillan-
type due process claim for the first time on appeal (indeed, at oral argument), we
review the claim for plain error. See United States v. Hart, 397 F.3d 643, 647 (8th
Cir. 2005) (“Under the plain error standard, we will only reverse obvious errors which
affect a defendant’s substantial rights and seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” (citation and internal marks omitted)).

      The Supreme Court recognized in McMillan that the constitutional protections
of due process limit the government’s ability to establish sentencing factors that

                                          -6-
subject a defendant to a sentence wholly unrelated to the substantive offense of which
he was convicted, but declined to define that limit. See McMillan, 477 U.S. at 87-88
(distinguishing Mullaney v. Wilbur, 421 U.S. 684, 700 (1975), where the defendant
in Mullaney “faced ‘a differential in sentencing ranging from a nominal fine to a
mandatory life sentence.’”). Since Apprendi v. New Jersey, 530 U.S. 466 (2000), we
have applied McMillan to cases where Guidelines sentencing factors were used to
enhance a defendant’s sentence but not beyond the statutory maximum as defined by
the criminal statute of conviction. See, e.g., United States v. Anderson, 243 F.3d 478,
485-86 (8th Cir. 2001) (noting that McMillan-type due process violations are rare and
upholding a 360-month sentence based on a relevant conduct enhancement that
increased the defendant’s unenhanced range of 235-293 months). Nothing in Booker
changes the interpretation of McMillan in our post-Apprendi cases. Because the
Guidelines are now advisory rather than mandatory, the criminal statute of conviction
still provides “the maximum [penalty] authorized by the facts established by a plea
of guilty or a jury verdict.” Booker, 125 S. Ct. at 756. We review Archuleta’s
McMillan challenge to determine whether judge-found facts increased his sentence
within the statutory range to such a degree as to have violated his right to due process.

       The base offense level for mail fraud is a level six, which, when coupled with
Archuleta’s criminal history category of I, results in a range of zero to six months.
See USSG § 2F1.1(a). After the adjustments were made to Archuleta’s base offense
level, he faced a sentencing range of 27 to 33 months and received a 27-month
sentence. Archuleta still faced a statutory range of zero to five years. See 18 U.S.C.
§ 1341.2 Thus, the 27-month sentence remained well within the statutory range
(indeed less than half of the statutory maximum), and the increase from a zero-to-six-
month range to 27 months is not such an increase that we would say the

      2
       Congress increased the maximum statutory penalty for mail fraud from five
to twenty years in 2002. See Sarbanes-Oxley Act of 2002, Pub. L. 107-204, § 903(a),
116 Stat 745, 804 ( 2002). The relevant statute is the 2000 version in effect at the
time of Archuleta’s offense.
                                           -7-
enhancements were the tail that wagged the substantive offense. See Anderson, 243
F.3d at 485-86 (increase of at least 67 months did not raise due process concerns);
United States v. Alvarez, 168 F.3d 1084, 1087-88 (8th Cir. 1999) (increase of at least
88 months did not raise due process concerns). Archuleta’s due process claim
therefore fails; there was no error, let alone plain error.

                                         III.

      The district court’s judgment is affirmed.
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