                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3701
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      * Appeal from the United States
                                       * District Court for the
     v.                                * Northern District of Iowa
                                       *
Michael Birks, also known as Player, *      [UNPUBLISHED]
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: July 27, 2005
                                 Filed: August 26, 2005
                                  ___________

Before MELLOY, LAY, and COLLOTON, Circuit Judges
                           ___________

PER CURIAM.

       Mr. Birks pleaded guilty to possessing crack cocaine with intent to distribute
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). The government and Mr. Birks
identified the applicable Federal Sentencing Guidelines range as seventy-eight to
ninety-seven months and recommended a bottom-of-the-range sentence of seventy-
eight months. The district court, applying the Sentencing Guidelines in a non-
advisory manner, exercised its discretion to reject the recommendation and impose
a sentence of eighty-eight months. Mr. Birks filed a timely appeal, and counsel for
Mr. Birks filed a brief under Anders v. California, 368 U.S. 738 (1967), requesting
permission to withdraw.
       While the appeal was pending, the Supreme Court issued its opinion in Blakely
v. Washington, 124 S.Ct. 2531 (2004), finding aspects of the State of Washington’s
sentencing regime unconstitutional and calling into question the constitutionality of
the Federal Sentencing Guidelines. We conducted an independent review as required
by Penson v. Ohio, 488 U.S. 75 (1988), found a potentially non-frivolous issue
related to Blakely, and denied counsel’s request to withdraw. The Supreme Court
then decided United States v. Booker, 125 S.Ct. 738 (2005), effectively rendering the
Federal Sentencing Guidelines advisory in all cases. We subsequently issued our en
banc decision in United States v. Pirani, 406 F.3d 543 (8th Cir. 2005), setting forth
standards for the preservation and plain error review of Blakely/Booker issues. After
Pirani, we instructed the parties in this case to file supplemental briefs regarding the
issues of preservation of error and plain error.

       Under our standard as set forth in Pirani, it is clear that Mr. Birks failed to
preserve any Blakely/Booker error. Accordingly, we review only for plain error. To
be entitled to relief under the plain error standard as articulated in Pirani, a defendant
must demonstrate error that is plain and that affects the defendant’s substantial rights.
Pirani, 406 F.3d at 550. To show that a Blakely/Booker error affects substantial
rights, a defendant must “establish a reasonable probability that, but for Booker error,
the defendant would have received a more favorable sentence under an advisory
guidelines regime.” Pirani, 406 F.3d at 553. Here, the district court applied a middle-
of-the-range sentence above that recommended by the government. There is nothing
to suggest that the Sentencing Guidelines constrained the district court or that the
district court would have imposed a lesser sentence had it not treated the Guidelines
as mandatory.

      Finding no plain error, we affirm the judgment of the district court.
                      ______________________________




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