                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1131
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Ramiro Garcia-Ramirez,                   *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: November 24, 2004
                                 Filed: May 24, 2005
                                  ___________

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

PER CURIAM.

      Ramiro Garcia-Ramirez appeals the district court’s1 entry of judgment and
imposition of sentence after a jury found him guilty of illegally reentering the United
States following removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). Garcia-
Ramirez’s counsel has moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), questioning whether the evidence introduced at trial
was sufficient to support the conviction. Garcia-Ramirez has filed a pro se
supplemental brief, in which he argues that the 16-level increase to his base offense

      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
level, pursuant to USSG § 2L1.2(b)(1)(A), violated his Sixth Amendment rights
based on the reasoning of Blakely v. Washington, 124 S. Ct. 2531 (2004).

       The evidence introduced at trial was more than adequate to support Garcia-
Ramirez’s illegal-reentry conviction. Garcia-Ramirez stipulated that he was an illegal
alien, and the government presented abundant evidence from which a jury reasonably
could have concluded that Garcia-Ramirez had been deported on numerous occasions,
and had been found in Nebraska without having obtained permission to reenter the
United States. See United States v. Rodriguez-Arreola, 270 F.3d 611, 619 n.15 (8th
Cir. 2001) (§ 1326 requires that government prove defendant is alien, defendant was
previously deported, and defendant has reentered United States without permission);
United States v. Stroh, 176 F.3d 439, 440 (8th Cir. 1999) (standard of review).

       Garcia-Ramirez’s Sixth Amendment challenge to the 16-level increase fails,
because the enhancement was based solely on the fact of his prior conviction for drug
trafficking. See United States v. Booker, 125 S. Ct. 738, 756 (2005) (holding that
any fact “other than a prior conviction” which enhances a penalty beyond the
maximum authorized by the conviction must be proven to a jury or admitted by the
defendant). In light of Booker, however, the district court did err by applying
mandatory sentencing guidelines, rather than advisory guidelines, to determine the
appropriate term of imprisonment.

       Reviewing the Booker claim for plain error, we conclude that Garcia-Ramirez’s
substantial rights were not affected by the court’s erroneous application of mandatory
sentencing guidelines, because the record as a whole does not establish a “reasonable
probability” that he would have received a more favorable sentence had the court
considered the guidelines as advisory. See United States v. Pirani, No. 03-2871, slip
op. at 11 (8th Cir. Apr. 29, 2005) (en banc). The district court sentenced at the low
end of the range, but a sentence at the bottom of the applicable guideline range is
insufficient, without more, to demonstrate a “reasonable probability” of a more

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favorable sentence under the advisory system. Id. at 12. The district court said it was
inclined to sentence “at or near the low end of the guideline range” because that
sentence represented a “substantial amount of time . . . for the offense under these
circumstances,” (Tr. at 113-14), but the court also remarked that “it’s questionable in
this case whether any length of prison term is sufficient to deter this particular
defendant from committing this offense again.” (Tr. at 116). Garcia-Ramirez has a
serious criminal history, including two prior convictions for felony drug offenses, two
prior convictions for property offenses, and three prior convictions for illegal reentry,
including a 1999 conviction for which he was under supervised release at the time of
the instant offense. Under the circumstances, we conclude that the record as a whole
does not establish a reasonable probability of a more favorable sentence under the
advisory guideline regime of Booker.

      Upon our independent review under Penson v. Ohio, 488 U.S. 75, 80 (1988),
we find no other nonfrivolous issues. Accordingly, we affirm, and we grant counsel’s
motion to withdraw on the condition that counsel complies with Part V of this court’s
Amended Criminal Justice Act Plan.
                       ______________________________




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