                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1838
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Northern District of Iowa.
Steven E. Smith,                       *
                                       *      [UNPUBLISHED]
            Appellant.                 *
                                  ___________

                             Submitted: June 23, 2005
                                Filed: August 29, 2006
                                 ___________

Before BYE1 and RILEY, Circuit Judges, and HOVLAND,2 District Judge.
                                ___________

PER CURIAM.

      This case is before us on remand from the United States Supreme Court for
reconsideration in light of United States v. Booker, 543 U.S. 220 (2005). Steven E.




      1
       Following remand of this case by the United States Supreme Court, the
Honorable Kermit E. Bye was appointed to replace the Honorable Richard S. Arnold,
an original member of this panel, who died on September 23, 2004.
      2
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota, sitting by designation.
Smith (Smith) appeals the 74-month sentence the district court3 imposed following his
guilty plea to credit card fraud, in violation of 18 U.S.C. § 1029(a)(5), (b)(1), and
(c)(1)(A)(ii). For reversal, Smith argues the district court erred by sentencing him
using the Sentencing Guidelines as mandatory in violation of Booker.

       Because Smith never raised any Sixth Amendment issue or objected to the
district court’s mandatory application of the Guidelines during sentencing, we review
his sentence for plain error. See United States v. Pirani, 406 F.3d 543, 550 (8th Cir.)
(en banc), cert. denied, 126 S. Ct. 266 (2005). The district court (understandably)
committed error by sentencing Smith under a mandatory Guidelines scheme.
However, this error was not prejudicial because the record does not show any
reasonable probability Smith would have received a more favorable sentence under
an advisory Guidelines scheme.

       After determining the applicable Guidelines range was 59 to 74 months, the
district court imposed a sentence at the top of the Guidelines range. In doing so, the
district court referred to the 74-month sentence as “the very top sentence that I can
give under the [Guidelines] computations.” Smith cannot establish he would have
received a more favorable sentence when the district court, sentencing him under a
mandatory Guidelines scheme, did not use what discretion it had to sentence Smith
to a lower term of imprisonment within the properly-calculated Guidelines range. See
United States v. Davis, 442 F.3d 681, 684 (8th Cir. 2006) (holding the defendant
failed to demonstrate, for purposes of plain error review, that he would have received
a more favorable sentence where the sentence imposed was at the top of the
Guidelines range).




      3
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

                                         -2-
       Because the district court’s statement and imposed sentence do not support a
finding of prejudice, we conclude Smith has not demonstrated plain error warranting
relief. Accordingly, we affirm.
                       ______________________________




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