                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3351
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Arkansas.
Robert Lee Varnedore,                   *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 20, 2005
                                Filed: September 13, 2005
                                 ___________

Before MELLOY, HEANEY, and GRUENDER, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Robert Lee Varnedore pled guilty to a charge of possession of stolen firearms
and was sentenced by the district court.1 Varnedore appeals his sentence arguing that
it was imposed in violation of the United States Supreme Court’s decision in Blakely
v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). We affirm.




      1
      The Honorable Robert T. Dawson, United States District Court Judge for the
Western District of Arkansas.
I. Background

       On June 8, 2004, Robert Lee Varnedore entered a guilty plea to one count of
possession of stolen firearms in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). In
exchange for his plea, prosecutors dismissed two other counts related to unlawful
firearms possession. The district court accepted the plea and ordered a Pre-Sentence
Report (“PSR”). The PSR recommended that the court impose three enhancements
to Varnedore’s sentence.

      Blakely was issued after Varnedore entered his plea, but prior to his sentencing,
which took place on September 16, 2004. On September 7, 2004, Varnedore
submitted to the court a “Supplemental Objection to the PSR Based on ‘Blakely
Ruling.’” In this document, Varnedore objected to two specific paragraphs of the PSR
which recommended particular enhancements to his sentence.2

      At sentencing, the district court stated, “at the request of Mr. Varnedore, I’m
going to rely upon the [United States Sentencing] Guidelines as simply being
advisory in connection with any sentence I may impose, but you will be sentenced


      2
          The first objection was to paragraph 15 of the PSR which stated:

      Specific Offense Characteristics: The defendant was in possession of at
      least three firearms; therefore, the offense level is increased by two (2)
      levels pursuant to USSG § 2K2.1(b)(1)(A).

The second objection was to paragraph 17 which stated:

      Specific Offense Characteristics: The defendant used a firearm in
      connection with the kidnaping, rape and assault of two female victims
      on December 21, 2001. The offense level is increased by four (4) levels,
      pursuant to USSG § 2K2.1(b)(5).


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within the statutory range I previously listed for you.”3 The district court sentenced
Varnedore to 63 months imprisonment, with 32 months consecutive to, and 31
months concurrent with, a 115-month sentence from the United States District Court
for the Northern District of Oklahoma. The entire sentence was to be served
concurrent with a 240-month state of Arkansas sentence.4

II. Analysis

       Because the district court treated the Guidelines as advisory, its sentence is
consistent with United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 750 (2005).
Varnedore argues that his sentence nonetheless violates Blakely because the district
court, in determining the Guidelines’ recommended sentence, relied on facts that
“were neither admitted by petitioner nor found by a jury.” This court has previously
stated, however, that “the sentencing judge is entitled to find all the facts appropriate
for determining either a Guidelines sentence or a non-Guidelines sentence.” United
States v. Haack, 403 F.3d 997, 1002 (8th Cir. 2005) (adopting language from United
States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005)).5 This court also noted in United


      3
       The statutory range previously discussed by the court was up to ten years
imprisonment, which could have been consecutive with, or concurrent to,
Varnedore’s sentence from the United States District Court for the Northern District
of Oklahoma.
      4
        Each of these sentences stemmed from events that occurred on or about
December 21, 2001, when Varnedore traveled between Oklahoma and Arkansas.
The federal sentence in Oklahoma was also related to possession of firearms while
the state sentence in Arkansas was for robbery, kidnaping, and sexual assault.
      5
          The Haack court also quoted additional language from Crosby which stated:

      The applicable Guidelines range is normally to be determined in the
      same manner as before Booker/Fanfan. Moreover, although the Court
      in the Substantive Opinion prohibits a sentencing judge from finding

                                          -3-
States v. Pirani that: “Nothing in Booker suggests that sentencing judges are required
to find sentence-enhancing facts beyond a reasonable doubt under the advisory
Guidelines regime.” 406 F.3d 543, 552 n.4.

       Although Varnedore objected to judicial fact-finding by the district court, he
did not offer any objection to the court’s calculation of the Guidelines’ recommended
sentence of 63 to 78 months in custody. The district court subsequently sentenced
Varnedore to 63 months, and there is nothing in the record to suggest that this
sentence was unreasonable. As such, the sentence does not contain any Booker error.
Pirani, 406 F.3d at 551 (“[T]he district court could have avoided Booker error by
declaring the Guidelines advisory . . . , determining the guidelines sentencing range
in the manner we have now upheld, and then imposing a ‘reasonable’ sentence.”)


III. Conclusion


      For the foregoing reasons, we affirm the judgment of the district court.
                            ______________________



      any facts that enhanced a Guidelines sentence above the range that is
      based solely on facts found by the jury in its verdict or admitted by the
      defendant, the Court in its Remedy Opinion contemplates that, with the
      mandatory use of the Guidelines excised, the traditional authority of a
      sentencing judge to find all facts relevant to sentencing will encounter
      no Sixth Amendment objection. Thus, the sentencing judge will be
      entitled to find all of the facts that the Guidelines make relevant to the
      determination of a Guidelines sentence and all of the facts relevant to
      the determination of a non-Guidelines sentence.

Haack, 403 F.3d at 1003 (quoting Crosby, 397 F.3d at 112).


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