                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
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                                   No. 06-3123
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United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Southern District of Iowa.
Jose Arquimides Ibarra,                   *
                                          *       [UNPUBLISHED]
             Appellant.                   *

                                ________________

                            Submitted: November 5, 2007
                                Filed: December 4, 2007
                                ________________

Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
                            ________________

PER CURIAM.

      This case is before us on remand from the United States Supreme Court for
reconsideration in light of Rita v. United States, 551 U.S. ---, 127 S. Ct. 2456 (June
21, 2007). In Rita, the Supreme Court held that the “presumption [of reasonableness]
applies only on appellate review.” Rita, 127 S. Ct. at 2465. “[T]he sentencing court
does not enjoy the benefit of a legal presumption that the Guidelines sentence should
apply.” Id. After reconsidering Ibarra’s sentence as directed by the Supreme Court,
we affirm.
       Ibarra appealed the sentence pronounced by the district court1 after his plea of
guilty to possession with intent to distribute five kilograms or more of cocaine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). The district court sentenced Ibarra to
108 months’ imprisonment, a sentence at the lower end of his advisory sentencing
guidelines range of 108 to 135 months. This court affirmed the sentence. Further
discussion of the underlying facts in this matter may be found at United States v.
Ibarra, 220 Fed. Appx. 454 (8th Cir.), vacated, --- U.S. ---, 76 U.S.L.W. 3223 (Oct.
29, 2007) (No. 07-5130).

       At sentencing, the district court discussed the 18 U.S.C. § 3553(a) factors and
also stated that a sentence within the advisory guidelines range was presumptively
reasonable. Ibarra did not object to the district court’s presumption. Therefore, we
now review Ibarra’s sentence for plain error. See United States v. Pirani, 406 F.3d
543, 550 (8th Cir. 2005) (en banc).

       Under plain error review, the defendant has the burden of proof. Id. (citing
United States v. Olano, 507 U.S. 725, 734-35 (1993)). He must prove that there was
“(1) error, (2) that [was] plain, and (3) that affect[ed] substantial rights. 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 affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (quoting Johnson v. United States, 520
U.S. 461, 466-67 (1997)). The district court committed error by stating that an
advisory guidelines sentence was presumptively reasonable. The error is plain at this
time. Id. However, this error did not affect substantial rights and was not prejudicial
to Ibarra because the record does not show “reasonable probability that he would have
received a more favorable sentence” without the presumption. Id. at 551. The district
court thoroughly discussed the § 3553(a) factors before it sentenced Ibarra. It stated:


      1
        The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.

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      It is certainly appropriate that I consider Mr. Ibarra’s past and his
      activities, and the record that I have indicates that it was of being a fine
      citizen, a contributor to his community . . . [but] the court must also
      consider the nature of the offense. . . . [D]istribution of cocaine,
      particularly significant amounts of cocaine, is a very serious offense and
      an extreme problem to society. . . .

      It seems to me that, under the circumstances of this case, what really
      drives this case is the seriousness of the offense, the amount of cocaine
      involved, the absence of any criminal record in the past, and all of those
      things are specifically addressed in the guideline calculation, particularly
      with the application of the safety valve.

      I conclude that the guideline sentencing system adequately addresses the
      circumstances of this case and that the sentencing guideline range is a
      reasonable range.

       Due to the seriousness of the offense and the need to avoid unwarranted
sentencing disparities, see § 3553(a)(6), the district court determined that “the
sentencing guideline range is a reasonable range.” With this proper analysis of the §
3553(a) factors and the district court’s determination that the guidelines range
constituted a reasonable range, we are convinced that Ibarra cannot carry his burden
of showing that he would have received a lesser sentence in the absence of the district
court’s erroneous presumption. Accordingly, we affirm Ibarra’s sentence.
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