                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 04-2246
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      District of Minnesota.
Robin M. Parsons,                        *
                                         *           [PUBLISHED]
            Appellant.                   *

                               ________________

                              Submitted: December 13, 2004
                                Reheard: April 11, 2005
                                  Filed: May 26, 2005 (Corrected 6/17/05)
                               ________________

Before BYE, HANSEN, and GRUENDER, Circuit Judges.
                         ________________

PER CURIAM.

       Pursuant to a written plea agreement, Robin M. Parsons pleaded guilty to mail
fraud, in violation of 18 U.S.C. § 1341, and money laundering, in violation of 18
U.S.C. § 1957. At sentencing, the district court1 adopted the unobjected-to final
presentence report, which calculated a Guidelines imprisonment range of 30-37
months. Parsons moved for a downward departure under U.S. Sentencing Guidelines

      1
       The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
Manual § 5K2.0, arguing that his case was outside the heartland and citing United
States v. Woods, 159 F.3d 1132 (8th Cir. 1998). The government responded that
Woods was distinguishable and that Parsons’s case was not outside the heartland.
The district court denied the downward-departure motion, saying:

      With respect to the motion for a downward departure under Section
      5K2, the Court is going to deny the motion.

      I have studied this very carefully, because I think that these were
      important issues raised by [defense counsel]; but having read the Woods
      case carefully, I have to agree with [the government’s] analysis of that
      case. It is somewhat different, although some of the aspects of it are the
      same. I think that it’s probably not good precedent for this particular
      situation. So the Court feels that the motion must be denied.

      The district court sentenced Parsons to two concurrent terms of 30 months in
prison and two concurrent three-year terms of supervised release. Parsons appeals.
For the reasons discussed below, we affirm.

                                          I.
      In his initial appellate brief, Parsons argues that the district court erred by
denying his motion for a downward departure, relying chiefly on Woods.

       Woods was a case involving a defendant who had filed for bankruptcy without
disclosing her ownership of certain stock. She engaged in money laundering by
selling the stock for $16,045, failing to disclose the transaction to the bankruptcy
trustee, and depositing the proceeds into her husband’s bank account. See Woods,
159 F.3d at 1133. The district court departed downward, concluding that her case
was outside the heartland because her conduct was not of the type that the Sentencing
Commission had intended to punish under the money-laundering Guideline. We
affirmed, holding that the district court was within its discretion to determine that


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Woods’s conduct did not constitute the serious or aggravated money laundering at
which the Guideline was primarily directed. See id. at 1134-36.

       In the instant case, the district court stated that it had read Woods and had
concluded that the circumstances of Parsons’s case were not sufficiently similar to the
circumstances present in Woods. The act of measuring one defendant’s case against
another defendant’s case to determine whether it is outside the heartland is a
quintessential district court function. The district court’s discretionary decision to
deny Parsons’s downward-departure motion is therefore unreviewable on appeal. See
United States v. Mohr, 382 F.3d 857, 861 (8th Cir. 2004) (a district court’s denial of
a defendant’s downward-departure motion is unreviewable where, after recognizing
the case authority authorizing a departure on the basis asserted by the defendant, the
district court decides a departure is not warranted in the defendant’s case).

                                             II.
       In his briefs filed on rehearing, Parsons argues that his sentence violates United
States v. Booker, 125 S. Ct. 738 (2005). There are two components to his argument.
First, he contends that the district court committed Sixth Amendment error by
enhancing his sentence under the Guidelines based on the amount of loss. Second,
he contends that the district court erred by applying the Guidelines as mandatory
rather than advisory. It is clear from the record that Parsons did not properly preserve
an objection to either of these matters below, such as by asserting a Sixth Amendment
right to have a jury find the amount of loss beyond a reasonable doubt, by arguing
that Apprendi v. New Jersey, 530 U.S. 466 (2000), applied to Guidelines
enhancements, or by arguing that mandatory application of the Guidelines was
unconstitutional. See United States v. Pirani, No. 03-2871, 2005 WL 1039976, at
**3-4 (8th Cir. Apr. 29, 2005) (en banc). Thus, our review is for plain error. See id.

      As to Parsons’s contention that the district court’s enhancement of his sentence
under the Guidelines based on the amount of loss violated the Sixth Amendment, we

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conclude that there is no error at all, let alone plain error. Because Parsons admitted
in his plea agreement that the amount of loss attributable to him was between $1.5
million and $2.5 million, requiring a 12-level enhancement under the Guidelines, this
enhancement of his sentence does not violate Booker, 125 S. Ct. at 756 (“Any fact
(other than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a reasonable doubt.”
(emphasis added)); United States v. Webb, 403 F.3d 373, 381 (6th Cir. 2005) (no
Sixth Amendment violation occurred where the defendant admitted in his plea
agreement that his machine gun was a destructive device and was stolen, and the
district court enhanced his sentence under the Guidelines on those grounds).

       Moreover, even if there had been a Sixth Amendment violation, the remedy
that Parsons requests–that a jury determine the amount of loss–is not the remedy for
Sixth Amendment violations prescribed by the Supreme Court. See Booker, 125 S.
Ct. at 757 (refusing to engraft a jury trial requirement onto the system of mandatory
Guidelines, and instead severing and excising statutory sections to render the
Guidelines advisory). Finally, the development in the law announced by Booker
subsequent to Parsons’s guilty plea does not invalidate his plea. See Brady v. United
States, 397 U.S. 742, 757 (1970) (“[A] voluntary plea of guilty intelligently made in
the light of the then applicable law does not become vulnerable because later judicial
decisions indicate that the plea rested on a faulty premise.”); United States v. Sahlin,
399 F.3d 27, 31 & n.3 (1st Cir. 2005) (rejecting the defendant’s arguments that his
pre-Booker plea was unknowing and involuntary in light of Booker).

       Turning to Parsons’s contention that the district court erred by applying the
Guidelines as mandatory rather than advisory, we conclude that he cannot satisfy his
burden under the third prong of the plain-error test to demonstrate that this error
affected his substantial rights, i.e., to show a reasonable probability that he would
have received a more favorable sentence under advisory Guidelines. See Pirani, 2005

                                          -4-
WL 1039976 at **4-5. Parsons was sentenced at the bottom of the Guidelines range,
but this fact “is insufficient, without more, to demonstrate a reasonable probability
that the court would have imposed a lesser sentence” under advisory Guidelines. See
id. at *7. Parsons directs our attention to the following statement by the district court
at sentencing:

      And just for the record, the Court finds that the sentence that is called
      for by the Sentencing Guidelines is appropriate in this case. Actually,
      I think it might be slightly high, but it’s close, and the Court finds no
      reason to depart from the guidelines sentence that is indicated by the
      Sentencing Guidelines in this case.

(Sent. Tr. at 23.)

       Parsons, of course, focuses on the district court’s remark that "I think it might
be slightly high,” but that remark must be read in the context of the district court’s
finding "that the sentence that is called for by the Sentencing Guidelines is
appropriate in this case," and its awareness of its authority to grant Parsons a
downward departure and its discretionary decision not to do so. Viewed in its
entirety, this passage is equivocal at best. Because “we would have to speculate”
about whether the district court would have imposed a lesser sentence under advisory
Guidelines, Parsons has not satisfied his burden to show a reasonable probability
under the third prong of the plain-error test. See Pirani, 2005 WL 1039976 at *7
(quoted source and internal marks omitted).

                                      III.
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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