                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3322
                                    ___________

United States of America,                *
                                         *
                   Appellee,             * Appeal from the United States
                                         * District Court for the District
      v.                                 * of Minnesota.
                                         *
David Anthony Petri,                     *      [UNPUBLISHED]
                                         *
                   Appellant.            *
                                    ___________

                               Submitted: November 14, 2005
                                  Filed: November 22, 2005
                                   ___________

Before WOLLMAN, FAGG, and MELLOY, Circuit Judges.
                          ___________

PER CURIAM.

       David Anthony Petri pleaded guilty to eighteen counts of mail fraud and bank
fraud. Petri later moved to withdraw his guilty plea based on the Supreme Court’s
post-plea decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). Petri disagreed
with the loss amount found in the presentence report and argued during the sentencing
hearing that he had a right to have that amount found by a jury. The district court*
found the applicable Guidelines range was below the statutory maximum sentence that
could be imposed based on Petri’s admissions at the change-of-plea hearing and thus

      *
      The Honorable Michael J. Davis, United States District Court for the District
of Minnesota.
the court concluded Blakely had no impact on Petri’s case. The court denied Petri’s
motion, treated the Guidelines as mandatory, and sentenced Petri at the top of the
Guidelines range to seventy-eight months in prison.

       Petri appeals arguing the mandatory application of the Guidelines violated
United States v. Booker, 125 S. Ct. 738 (2005). In Booker, the Court held the
Guidelines violated the Sixth Amendment in requiring sentencing courts to find
certain facts and thus impose a more severe sentence than could have been imposed
based on facts found by a jury or admitted by the defendant. See United States v. Red
Elk, No. 03-3069, 2005 WL 2585708, at *1 (8th Cir. Oct. 14, 2005). As a remedy, the
Court concluded the Guidelines are advisory rather than mandatory. Id. In this case,
there was no Sixth Amendment violation because Petri’s sentence enhancements were
based on his own admissions. The only error was the district court’s treatment of the
guidelines as a mandatory sentencing scheme rather than advisory.

       Because Petri raised Blakely at sentencing, we review the error for
harmlessness. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc).
To prove a nonconstitutional error is harmless, the government has the burden to show
there is no “grave doubt” about whether the error substantially influenced the outcome
of the sentencing proceedings. United States v. Haidley, 400 F.3d 642, 644-45 (8th
Cir. 2005); see Red Elk, 2005 WL 2585708, at * 2. Since the district court sentenced
Petri at the top of the sentencing range despite defense counsel’s arguments for a
lower sentence, the government can meet its burden in this case. See Red Elk, 2005
WL 2585708, at *2-3. Further, Petri’s sentence is reasonable under the factors set out
in 18 U.S.C. § 3553(a). See Booker, 125 S. Ct. at 765-66.

      Accordingly, we affirm Petri’s sentence.
                     ______________________________




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