                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3635
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Kevin Jay Bruce,                        *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: June 7, 2005
                                Filed: July 13, 2005
                                 ___________

Before BYE, RILEY, and COLLOTON, Circuit Judges.
                            ___________

PER CURIAM.

       Kevin Bruce pleaded guilty to escape. See 18 U.S.C. § 751(a). His
sentencing hearing occurred after the Supreme Court’s decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004), but before the Court announced in United
States v. Booker, 125 S. Ct. 738 (2005), that the federal sentencing guidelines
were effectively advisory in all cases. At sentencing, when Bruce challenged the
constitutionality of the Guidelines under Blakely, the district court1 stated: “I have
taken a position as to the guidelines that they are neither constitutional nor

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
unconstitutional, that if they are eventually found to be constitutional, I’m going to
sentence today on the grounds of those guidelines, and if they’re found to be
unconstitutional, I will have been sentencing on the ground that the guidelines
were unconstitutional, but I was using the guidelines as a guide only, not relying
on them as such.” (S. Tr. 6). The court then sentenced Bruce to 37 months, the
bottom of the applicable guidelines sentencing range. Bruce now challenges the
sentence.

       We conclude that any error in applying the mandatory guidelines for one of
the two alternative sentences is harmless, as the district court clearly indicated that
it would impose the same sentence under an advisory system. See United States v.
Thompson, 408 F.3d 994, 996-97 (8th Cir. 2005) (per curiam). The sentence also
is not unreasonable with regard to 18 U.S.C. § 3553(a). Accordingly, we affirm.
                       ______________________________




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