                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2588
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Dale D. Mitchell, Jr.,                  *
                                        *      [UNPUBLISHED]
             Appellant.                 *
                                    __________

                             Submitted: April 14, 2006
                                Filed: April 28, 2006
                                 ___________

Before WOLLMAN, McMILLIAN,1 and RILEY, Circuit Judges.
                         ___________

PER CURIAM.

       This case is before us on remand from the Supreme Court for reconsideration
in light of Booker v. United States, 543 U.S. 220 (2005). Having reconsidered Dale
D. Mitchell Jr.’s (Mitchell) sentence as directed by the Court, we reinstate our prior
panel opinion and affirm Mitchell’s sentence.




      1
        The Honorable Theodore McMillian died on January 18, 2006. This opinion
is filed by the remaining members of the panel pursuant to 8th Circuit Rule 47E.
      The facts of this case are set forth in United States v. Mitchell, 109 Fed. App’x
833 (8th Cir. 2004) (unpublished) (per curiam), cert. granted, judgment vacated by
126 S. Ct. 634 (2005), and we repeat and supplement the facts here only as relevant
to Mitchell’s Booker claim.

       Mitchell pled guilty to one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He entered into a written plea
agreement and stipulated to a base offense level of 20 and a 4-level increase for
possession of the firearm in connection with another felony offense. He further
(1) agreed not to appeal or “otherwise challenge the constitutionality or legality of the
Sentencing Guidelines”; (2) acknowledged the district court’s2 jurisdiction and
authority to impose any sentence up to the 10-year statutory maximum; and
(3) waived his right to appeal his sentence unless the district court imposed an upward
departure, exceeded the statutory maximum, or violated the law apart from the
Guidelines. The district court, consistent with the written plea agreement and the
Presentence Investigation Report’s (PSR) recommendations, determined Mitchell’s
total offense level was 21 (which included a 3-level adjustment for acceptance of
responsibility). At criminal history category VI, Mitchell’s sentencing range was 77
to 96 months. The district court sentenced Mitchell to 86 months’ imprisonment and
3 years’ supervised release.

      “The argument that a Booker error occurred is preserved if the defendant below
argued Apprendi3 or Blakely4 error or that the Guidelines were unconstitutional.”
United States v. Pirani, 406 F.3d 543, 549 (8th Cir.) (en banc) (citations and quotation


      2
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
      3
       Apprendi v. New Jersey, 530 U.S. 466 (2000).
      4
       Blakely v. Washington, 542 U.S. 296 (2004).

                                          -2-
omitted), cert. denied, 126 S. Ct. 266 (2005). Mitchell made no objection upon
receiving his PSR. At Mitchell’s sentencing hearing, Mitchell acknowledged he
reviewed the PSR with counsel and had no objections to the report. When the district
court offered him the opportunity for allocution, Mitchell simply expressed his
remorse. We conclude Mitchell did not preserve a Booker error argument. We
therefore review Mitchell’s sentence for plain error. Id. at 550.

       We find no plain error by the district court, given Mitchell waived his right to
have a jury determine the enhancement issue by stipulating to the 4-level increase in
his plea agreement, did not object to the PSR’s description of the offense conduct
(aggravated assault), acknowledged the district court’s authority to impose the
sentence, and waived his appeal right. See United States v. Reeves, 410 F.3d 1031,
1034-35 (8th Cir.) (concluding the right to appeal under Booker is among the rights
waived by a broad appeal waiver, even if defendant did not anticipate the Booker
ruling), cert. denied, 126 S. Ct. 469 (2005); United States v. Killgo, 397 F.3d 628, 629
n.2 (8th Cir. 2005).

      Accordingly, we affirm Mitchell’s sentence.
                           ______________________________




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