                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1037
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Damon John Torres,                       *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: September 6, 2005
                                 Filed: November 4, 2005
                                  ___________

Before COLLOTON, LAY, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       In an opinion filed on November 5, 2004, we affirmed an order of the district
court denying a motion filed by Damon John Torres to compel the United States to
file a motion to reduce his sentence pursuant to Federal Rule of Criminal Procedure
35(b) based on the provision of substantial assistance. Torres then filed a petition for
writ of certiorari with the Supreme Court of the United States. The Court granted the
petition, vacated our judgment, and remanded the case for further consideration in
light of United States v. Booker, 125 S. Ct. 738 (2005). See Torres v. United States,
125 S. Ct. 2925 (2005). We received supplemental briefs from the parties, and we
now affirm the judgment of the district court.
       Although the parties have briefed whether the district court’s original
imposition of sentence constituted plain error warranting relief within the meaning
of Booker and United States v. Pirani, 406 F.3d 543, 551 (8th Cir. 2005) (en banc),
we conclude that there is no appellate jurisdiction to consider that question. Torres
was sentenced on August 1, 2001. He did not file a timely direct appeal from that
sentence. In July 2002, Torres then filed a motion, which was amended in November
2003, to compel the government to file a motion to reduce sentence pursuant to Rule
35(b). The district court denied the motion in December 2003, and Torres filed an
appeal from that order in January 2004. This appeal thus raises the narrow question
whether the district court erred in declining to compel the filing of a substantial-
assistance motion. For the reasons stated in our opinion of November 5, 2004, we
affirm the district court’s decision to deny the motion. Our jurisdiction to review the
district court’s order of December 2003, however, does not extend to review of the
sentence originally imposed in August 2001. An appeal of that judgment is untimely.

       If the original sentence were properly before us, we would conclude that the
district court’s imposition of sentence involved no plain error warranting relief under
Pirani. To obtain relief under the plain-error standard, a defendant must show a
reasonable probability that he would have received a more favorable sentence under
the advisory guidelines scheme announced in Booker. In this case, the district court
calculated a sentencing range of 135 to 168 months’ imprisonment under the then-
mandatory guidelines, and then sentenced Torres to a term of 150 months’
imprisonment. A sentence in the middle of the advisory guideline range is
“insufficient per se to demonstrate a reasonable probability that a district court would
have imposed a more lenient sentence under an advisory Guidelines system,” United
States v. St. James, 415 F.3d 800, 807 (8th Cir. 2005), and, indeed, it is sufficient
under our precedents to demonstrate that a Booker error is harmless. United States
v. Perez-Ramirez, 415 F.3d 876, 878 (8th Cir. 2005). We also conclude that a
sentence in the middle of the advisory guideline range is reasonable in this case.



                                          -2-
Accordingly, even were we to consider Torres’s claim based on Booker, there is no
basis for relief.

      The judgment of the district court is affirmed.

LAY, Circuit Judge, concurring.

       I agree with the majority’s conclusion that our court lacks jurisdiction to review
the district court’s order of December 2003. Because the majority has elected to
discuss whether the defendant in this case would have received relief under United
States v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc), I write separately to express
my dissatisfaction with the inflexible manner in which plain error is used by this court
to review Booker claims. Pirani does not make any sense and puts blinders upon our
review of Booker cases. Even where it is obvious the district court imposed a
mandatory sentence based on facts not admitted to by the defendant or found by a jury
beyond a reasonable doubt in violation of the Sixth Amendment, we will not entertain
the possibility of a remedy for this constitutional error if the record is mute on the
issue of whether the district court would have imposed a different sentence if the
Guidelines were merely discretionary. Considering that, at the time of sentencing, the
Guidelines were mandatory, a silent record on this point is to be expected and we
should not fault a defendant for an inability to point to non-existent evidence. While
justice may be blind, I cannot turn a blind eye to injustice. As eloquently stated by
Judge Bye,

      The duty of showing prejudice which the [rule of Pirani bestows] on a
      defendant is like asking a defendant to prove the existence of a divine-
      being or the existence of life on a planet other than our own. The
      evidence either does not exist or is beyond the defendant’s mere human
      capabilities, thus any attempt to explain how a defendant may meet this
      showing, without an explicit statement on the record by the sentencing
      judge, is nothing more than an empty exercise in casuistry.

                                          -3-
Id. at 564 (Bye, J., dissenting).

      I suggest the limited remand approach adopted by the Second, Seventh and
Ninth Circuits strikes the correct balance between judicial economy and our duty to
protect the constitutional rights of criminal defendants. See United States v. Ameline,
409 F.3d 1073 (9th Cir. 2005) (en banc); United States v. Paladino, 401 F.3d 471 (7th
Cir. 2005); United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). As it is nearly
always impossible for a defendant to demonstrate that the district court would have
imposed a different sentence under a discretionary sentencing regime, a limited
remand to answer this question is both practical and just.
                        ______________________________




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