                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                   ___________

                                    No. 04-3101
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
John A. Schafer,                         *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: May 11, 2005
                                  Filed: November 25, 2005
                                   ___________

Before LOKEN, Chief Judge, BEAM and MELLOY, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

      John A. Schafer pleaded guilty to three child pornography offenses in violation
of 18 U.S.C. §§ 2252(a)(1), (2), and (4). Two months after the Supreme Court’s
decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), the district court1
sentenced Schafer to 137 months in prison. Applying U.S.S.G. § 5G1.3(c) (2002),2


      1
        The HONORABLE NANETTE K. LAUGHREY, United States District Judge
for the Western District of Missouri.
      2
      Unless otherwise noted, all citations are to the Guidelines provisions in effect
on November 1, 2002, when Schafer committed the offenses.
the court ordered that the federal sentence run consecutively to Schafer’s undischarged
state sentence for numerous child abuse offenses. Schafer raised a Blakely objection
at sentencing. In response, the district court imposed a higher alternative consecutive
sentence -- 180 months in prison -- in the event the Guidelines were held
unconstitutional. Schafer appeals, arguing that the district court incorrectly applied
U.S.S.G. § 5G1.3 by imposing a consecutive federal sentence and violated his Fifth
and Sixth Amendment rights under Blakely. We analyze the latter contention under
the Supreme Court’s subsequent decision in United States v. Booker, 125 S. Ct. 738
(2005). We affirm.

                               I. The § 5G1.3 Issue.

       Schafer’s federal charges grew out of an investigation that included an
interview in which he admitted being a pedophile and collecting child pornography
for thirty years, and a warrant search that yielded at least 1,825 computer images of
child pornography, some involving bondage and bestiality, and videotapes and slides
depicting Schafer having sexual relations with and sodomizing four young victims.
Based on the tapes and slides, Schafer was also charged with rape, incest, sodomy, and
child abuse in a 53-count state court indictment. After Schafer’s federal guilty plea,
his April 2004 presentence investigation report cited this conduct, plus evidence that
he had sexually molested at least eight other children over a long period of time, in
recommending a five-level enhancement for “a pattern of activity involving the sexual
abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(4). Some time later, Schafer
pleaded guilty to 31 of the state court charges.

      Two weeks before Schafer’s August 2004 sentencing hearing, the state court
sentenced him to life plus seven years in prison for the child abuse offenses. At his
federal sentencing, he argued that the state offenses were relevant conduct to the
federal offenses and therefore a concurrent federal sentence is mandated by U.S.S.G.
§ 5G1.3(b):

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      If . . . the undischarged term of imprisonment resulted from offense(s)
      that have been fully taken into account in the determination of the
      offense level for the instant offense, the sentence for the instant offense
      shall be imposed to run concurrently to the undischarged term . . . .

The government argued that subsection (b) does not apply because the five-level
enhancement in § 2G2.2(b)(4) is warranted by Schafer’s abuse of children other than
the victims of the state offenses. Therefore, under § 5G1.3(c), “the sentence . . . may
be imposed to run . . . consecutively to the prior undischarged term of imprisonment
to achieve a reasonable punishment for the instant offense.”

       The district court found that the five-level enhancement applies without taking
the state offenses into account. The court departed upward and imposed a 137-month
sentence to run consecutively to the undischarged state court sentence. On appeal,
Schafer challenges the consecutive sentencing. The underlying facts are not at issue.
We review the district court’s interpretation and application of § 5G1.3 de novo.
United States v. Lincoln, 408 F.3d 522, 526 (8th Cir. 2005).

       The 2002 version of § 5G1.3(b) mandated a concurrent federal sentence if the
offenses underlying an undischarged state sentence were “fully taken into account”
in determining the federal sentence. The phrase “fully taken into account” triggered
a perceived conflict among two of our sister circuits. In United States v. Fuentes, 107
F.3d 1515, 1524 (11th Cir. 1997), the court concluded that § 5G1.3(b) requires a
concurrent sentence “when a defendant is serving an undischarged sentence resulting
from conduct that is required to be considered in a subsequent sentencing proceeding
as relevant conduct pursuant to section 1B1.3.” In United States v. Williams, 260
F.3d 160, 167 (2d Cir. 2001), on the other hand, the court held that, even if prior
offense conduct “might technically qualify as ‘relevant conduct’ in a federal
prosecution, a defendant cannot enjoy the benefits of section 5G1.3(b) unless the
district court in fact incorporated his prior offense as relevant conduct.” We have not
had occasion to consider these seemingly disparate interpretations.

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       At the outset, we note that this conflict may be more apparent than real, at least
as applied to this case. In Fuentes, 107 F.3d at 1524-26, the court explained that the
grouping rules in § 3D1.2(d) must be applied to determine whether a separate state
offense is relevant conduct under § 1B1.3(a)(2) and therefore has been “fully taken
into account” in the federal sentence. This is a logical linkage because § 5G1.3(b),
like the grouping rules in § 3D1.2, “operates to mitigate the possibility that the fortuity
of two separate prosecutions will grossly increase a defendant’s sentence.” Witte v.
United States, 515 U.S. 389, 405 (1995). Here, the offense level for Schafer’s child
pornography offenses is determined under § 2G2.2, which is a guideline subject to
grouping under § 3D1.2(d). But his state child abuse offenses, if sentenced under the
federal Guidelines, would fall under Part 2A3, which governs offenses “specifically
excluded” from grouping under § 3D1.2(d). Thus, even under the Fuentes analysis,
it appears that § 5G1.3(b) does not apply in this case and therefore the district court
had discretion to impose consecutive sentences.

       In any event, the Sentencing Commission addressed this apparent circuit
conflict in November 2003 by amending § 5G1.3(b) to provide that concurrent
sentencing is required only if the undischarged term of imprisonment “resulted from
another offense that is relevant conduct to the instant offense of conviction . . . and
that was the basis for an increase in the offense level for the instant offense.”
(Emphasis added.) The Commission described this as a clarifying amendment. See
U.S.S.G. App. C, Vol. II, amendment 660. Assisted by this clarification, we conclude
that the Second Circuit in Williams correctly interpreted the term “fully taken into
account” in the 2002 version of § 5G1.3(b). Here, as in United States v. Terry, 305
F.3d 818, 825-26 (8th Cir. 2002), the district court did not base the five-level
enhancement under § 2G2.2(b)(4) on either the state court conviction or the offense
conduct underlying that conviction. Therefore, the court correctly concluded that it
had discretion under § 5G1.3(c) to impose a consecutive federal sentence.




                                            -4-
                               II. The Booker Issue.

       The district court’s primary sentence assumed that the Guidelines were
mandatory and included fact-based enhancements under U.S.S.G. § 2G2.2(b). The
court overruled Schafer’s objection based on Blakely. In this circuit, when the
defendant has preserved a claim of Booker error by arguing Blakely to the district
court, we review the claim for harmless error whether “addressing a Sixth Amendment
challenge or a challenge to the use of mandatory, as opposed to advisory, guidelines.”
United States v. Archuleta, 412 F.3d 1003, 1005-06 (8th Cir. 2005). Schafer argues
the error was not harmless. We agree there was understandable Booker error but
conclude it was harmless.

       In response to Schafer’s Blakely objection, the district court imposed an
alternative sentence in the event the Guidelines were declared unconstitutional. In
some cases, an alternative sentence -- even an identical alternative sentence -- “can
render a Booker error harmless.” United States v. Porter, 417 F.3d 914, 917 (8th Cir.
2005), citing United States v. Bassett, 406 F.3d 526, 527 (8th Cir. 2005). Here, of
course, the alternative sentence was not identical. Instead, freed of Guidelines
constraints, the court imposed a consecutive federal sentence equal to the highest
statutory maximum penalty applicable to the three counts of conviction, 180 months.

      The burden of proving an error harmless is on the beneficiary of the error. The
government’s brief, filed prior to Booker, urged us to affirm the district court’s
primary 137-month consecutive sentence. But at oral argument, the government
refused to argue that any Booker error was harmless. The reason for these
contradictory positions is apparent -- the government urged the district court at
sentencing to depart upward to the statutory maximum of 180 months and no doubt
is confident that the district court would now impose its alternative 180-month
sentence if we remand for resentencing under Booker. But the government may not



                                         -5-
obtain relief for Booker error; it did not cross appeal. Therefore, we disregard its
tactical decision to eschew reliance on the harmless error principle.

       After careful review of the sentencing record, we conclude that the Booker error
was harmless beyond a reasonable doubt.3 The issue is whether Schafer would have
received a more favorable sentence had the district court sentenced him under the
advisory Guidelines regime mandated by Booker. In determining the 137-month
sentence, the court first granted an upward departure to offense level 28 and criminal
history category IV, based upon Schafer’s extensive pattern of abusing children, the
large number of visual depictions seized, and his understated criminal history. The
court then imposed a sentence at the top of the resulting range (110-137 months) to
run consecutively to Schafer’s state sentence of life plus seven years. In imposing the
180-month alternative sentence, the court noted that the 59-year-old Schafer may be
eligible for state parole in as little as thirteen years and explained:

      [I]n the absence of the guidelines . . . you sentence the person. Is this
      something that you think is, in fact, a continuing threat to the community
      and will be, regardless of how much rehabilitation is provided and how
      much incarceration is imposed. And I believe that the defendant is such
      a threat. . . . [G]iven that evidence, I am reluctant to permit any
      possibility that this defendant will, in fact, ever be in a position to abuse
      children again. . . . So this is just an insurance policy to make sure that
      if, in fact, the State chooses to let him out that the federal government
      will make sure that he is restrained.

      This sentencing record contains nothing to suggest that Schafer would have
received a more favorable sentence had the district court anticipated Booker’s


      3
        This is the harmless error standard we apply to Sixth Amendment Booker
violations. See Archuleta, 412 F.3d at 1006. Absent a Booker error of constitutional
magnitude, we apply the less rigorous “no grave doubt” standard. See United States
v. Bruce, 413 F.3d 784, 785 (8th Cir. 2005).
                                           -6-
advisory guidelines regime. The court correctly applied the mandatory Guidelines,
imposing a substantial upward departure and a discretionary consecutive sentence.
The 137-month consecutive sentence was not unreasonable given Schafer’s decades
of abuse of his children, his grandchildren, and others; his extensive collection of
child and adult pornography; and evidence that he distributed child pornography on
the Internet. Finally, the court’s detailed explanation of its alternative sentence
demonstrates that it considered the sentencing factors enumerated in 18 U.S.C.
§ 3553(a). In these circumstances, the Booker error was harmless.

       The judgment of the district court dated August 19, 2004, is affirmed, except
that the court is directed to delete the second and third paragraphs of the Imprisonment
section of the judgment form, which reflect the alternative sentence. We affirm the
137-month sentence as stated in the first paragraph of that section.
                          ______________________________




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