                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                               Nos. 03-2503/04-1351
                                   ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeals from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Rusty Leisure,                           *
                                         *    [PUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted: March 1, 2005
                               Filed: July 5, 2005
                                   ___________

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       In a previous opinion filed July 30, 2004, we affirmed Leisure’s conviction and
sentence. United States v. Leisure, 377 F.3d 910 (8th Cir. 2004). In a petition for
rehearing en banc, Leisure argued for the first time that the case should be remanded
for resentencing in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), which
called into doubt the constitutionality of the mandatory federal sentencing guidelines.
The petition for rehearing was denied on September 16, 2004, and Leisure then
petitioned for a writ of certiorari. On January 24, 2005, the Supreme Court granted
the petition, vacated our previous judgment, and remanded the case for further
consideration in light of United States v. Booker, 125 S. Ct. 738 (2005), which
declared the sentencing guidelines effectively advisory in all cases.

        Leisure did not object to his sentence in the district court based on the Sixth
Amendment or the application of mandatory guidelines. Thus, we consider the
impact of Booker on Leisure’s sentence under the plain-error standard. United States
v. Pirani, 406 F.3d 543, 549-50 (8th Cir. 2005). To justify relief, the record must at
least establish a reasonable probability that the district court would have imposed a
more favorable sentence under the advisory guideline scheme announced in Booker.
Id. at 553.

       In this case, the applicable guideline sentencing range was 360 months to life
imprisonment, and the district court imposed a term of 360 months. A sentence at the
low end of the range, however, “is insufficient, without more, to demonstrate a
reasonable probability that the court would have imposed a lesser sentence absent the
Booker error.” Id. The district court’s comment regarding the sentence imposed also
gives no indication that the court believed the 360-month sentence was unreasonable:

      I’ll note that the upper and lower ends of the guideline range exceed the
      24-month range requiring me to state on the record my reasons for
      choosing the low end. And I choose the low end simply because this is
      a very substantial period of incarceration; and it should give Mr. Leisure
      opportunities for rehabilitation, programming, and I think that it’s an
      adequate sentence.

(Tr. 661-62). Where the effect of the district court’s erroneous application of
mandatory guidelines is uncertain or indeterminate, then the reasonable probability
standard is not satisfied, Pirani, 406 F.3d at 553, and we find nothing in the record
to take us beyond the realm of speculation as to how the district court might have
imposed sentence differently under the current sentencing system.

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       As to all issues other than those implicated by Booker, we adhere to our prior
opinion. For the foregoing reasons, having considered the matter further in light of
Booker, we affirm the judgment of the district court. Attorney Krisanne Weimer is
directed to comply with Part V of this court’s Amended Criminal Justice Act Plan.
Upon notice from Ms. Weimer that she has so complied, the clerk is directed to grant
counsel’s motion to withdraw.
                         ______________________________




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