                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-4018
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Joseph Jonquil Oates,                  *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: September 15, 2005
                                Filed: November 3, 2005
                                 ___________

Before LOKEN, Chief Judge, BYE and SMITH, Circuit Judges.
                              ___________

BYE, Circuit Judge.

        After Joseph Jonquil Oates pleaded guilty to credit card fraud and identity
theft, the district court1 sentenced him to forty-one months of imprisonment. Oates
appeals contending the district court erred in calculating his sentence under the
United States Sentencing Guidelines (U.S.S.G.). Oates also raises constitutional
challenges to his sentence under United States v. Blakely, 524 U.S. 296 (2004), and
United States v. Booker, 125 S. Ct. 738 (2005). We affirm.


      1
       The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
                                           I

      A federal grand jury indicted Oates on two counts of identity theft in violation
of 18 U.S.C. § 1028(a) and one count of credit card fraud in violation of 18 U.S.C.
§ 1029(a). Oates used another's social security number to obtain a business credit
card account in the name of "U.S. Government International Concierge" and then
charged $41,330.09 for his own personal use to the credit card account.

       Pursuant to a plea agreement, Oates agreed he was guilty of credit card fraud
and one count of identity theft. The agreement stipulated to a base offense level of
six, plus a six-level increase for the amount of loss under U.S.S.G. § 2B1.1(b)(1).
The agreement precluded Oates from withdrawing his plea if the district court applied
enhancements not contemplated by the parties. At the plea hearing, the district court
told Oates the identity theft count carried a statutory maximum of fifteen years, while
the credit card count carried a statutory maximum of ten years.

       The district court asked the probation office to prepare a pre-sentence
investigation report (PSR) for use at sentencing. The PSR's recommendations
differed from the sentence contemplated by the parties in two respects. First, the
PSR indicated the base offense level should be seven rather than six because Oates
had a prior conviction for credit card fraud. The prior conviction doubled the
statutory maximum for the credit card fraud count, see 18 U.S.C. § 1029(c)(1)(B)
("[The penalty for] an offense that occurs after a conviction for another offense under
this section [is] imprisonment for not more than 20 years"), and consequently
increased the base offense level, see U.S.S.G. § 2B1.1(a) (requiring a base offense
level of seven when the "offense of conviction has a statutory maximum term of
imprisonment of 20 years or more.").




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       Second, the PSR recommended a two-level enhancement under U.S.S.G.
§ 2B1.1(b)(9)(C)(i) (2003)2 for "the unauthorized . . . use of any means of
identification unlawfully to produce or obtain any other means of identification." The
PSR recommended this enhancement because Oates unlawfully used the victim's
social security number (a means of identification) to obtain the business credit card
account number (another means of identification).

      The sentencing in this case took place after Blakely and before Booker. Prior
to sentencing, Oates's counsel filed a "Defendant's Position with Regard to
Sentencing and Motion for a Downward Departure" referencing Oates's rights under
Blakely:

      At a time when the laws regarding sentencing are changing, almost
      weekly, it is difficult to know what law will be in effect at the time of
      sentencing. In order to achieve some predictability and stability on
      these shifting sands, Mr. Oates elects (if such an election is allowed) to
      be sentenced under the U.S. Sentencing Guidelines. However, he
      wishes to preserve any appeal issues he may have under Blakely v.
      Washington, 124 S. Ct. 2531 (2004)[.]

       At the sentencing hearing, Oates did not object to the PSR's factual findings,
which included the fact Oates used the victim's social security number to obtain a
credit card account number for a fictitious business, the amount of loss, and the fact
Oates's fraudulent activity was reflected on the victim's credit report. Marc St. Louis,
the victim, included a victim impact statement explaining how his personal credit had
been affected and the steps he took to "stay ahead of Mr. Oates' calculating behavior"
and prevent his identity from being linked to the business credit card account number.


      2
       The 2003 version of the Guidelines applied to Oates's sentence. Except where
indicated, all references to the Guidelines will be to the 2003 version of the
Guidelines Manual. The means-of-identification enhancement at issue is now found
at U.S.S.G. § 2B1.1(b)(10)(C)(i).

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      The district court treated the guidelines as mandatory. It also adopted the two
PSR recommendations which differed from the parties' plea agreement. This resulted
in a final offense level of thirteen – three levels higher than the parties had
contemplated. Oates had a criminal history category of VI, resulting in a sentencing
range of thirty-three to forty-one months. The district court sentenced Oates to forty-
one months imprisonment.

       Oates timely appealed contending the district court violated his Fifth
Amendment due process rights by failing to inform him of the "relevant statutory
maximum" at his plea hearing. Oates contends the "relevant statutory maximum"
under Booker and Blakely is thirty months, or the top end of the guideline range
contemplated by the parties in the plea agreement. Oates further contends the "means
of identification" enhancement does not apply to his conduct, and the base offense
level of seven should not apply because he was neither indicted on a twenty-year
offense nor informed of such at his change of plea hearing.

                                          II

      A.     Means of Identification

      We first address whether the district court erred in interpreting and applying
the two-level "means of identification" enhancement. We review this claim de novo.
United States v. Paine, 407 F.3d 958, 963 (8th Cir. 2005).

       Oates first contends the district court misapplied the enhancement by using the
wrong definition of "means of identification." The 2003 Guidelines Manual states
"'means of identification' has the meaning given that term in 18 U.S.C. § 1028(d)(4)."
U.S.S.G. § 2B1.1, cmt. n.8(A) (emphasis supplied). Notwithstanding this directive,
the district court applied the statutory definition of "means of identification" found
at 18 U.S.C. § 1028(d)(7). The district court did so because an April 2003

                                         -4-
reorganization of § 1028 moved the statutory definition for "means of identification"
from subsection (d)(4) to (d)(7). The Guidelines did not reflect the definition's new
statutory home until 2004. See U.S.S.G. § 2B1.1 cmt. n.9(A) (2004). Oates contends
the district court was required to apply the 2003 Guidelines literally and define
"means of identification" using the statutory definition found at § 1028(d)(4), which
happens to define a "false identification document." We disagree.

       The Guidelines incorporated the statutory definition of "means of
identification" found at § 1028(d)(4) prior to the definition's migration to
§ 1028(d)(7). As a consequence, the 2003 Guidelines Manual preserved the original
definition notwithstanding the failure to correctly cross-reference the statute after its
reorganization:

      Where one statute adopts the particular provisions of another by a
      specific and descriptive reference to the statute or provisions adopted,
      the effect is the same as though the statute or provisions adopted had
      been incorporated bodily into the adopting statute. . . . Such adoption
      takes the statute as it exists at the time of adoption and does not include
      subsequent additions or modifications by the statute so taken unless it
      does so by express intent.

United States v. Griner, 358 F.3d 979, 982 (8th Cir. 2004) (quoting Hassett v. Welch,
303 U.S. 303, 314 (1938)) (in turn quoting 2 Sutherland on Statutory Construction,
787-88 (2d ed. 1904)). Griner applied this "well-settled canon" of statutory
construction after Congress failed to correct a statutory cross-reference between 18
U.S.C. §§ 3583(d) and 3563(b) when the latter statute was reorganized. See Griner,
358 F.3d at 982. We believe this rule applies equally when the Guidelines adopt
particular provisions of a statute by specific and descriptive reference, and the statute
is thereafter reorganized.

      Oates next contends the "means of identification" enhancement does not apply
to him because the credit card account number he obtained was in the name of a

                                          -5-
fictitious business. He concedes he used one "means of identification" (the victim's
social security number) unlawfully to obtain another "means of identification" (the
credit card account number), but claims the credit card account number was not a
means of identifying "an actual (i.e., not fictitious) individual, other than the
defendant or a person for whose conduct the defendant is accountable under § 1B1.3
(Relevant Conduct)," U.S.S.G. § 2B1.1 cmt. n.8(A), and therefore should not trigger
the two-level enhancement. We disagree.

        Although the credit card account number was issued in the name of a fictitious
business, it was still a means of identifying an actual individual. It is undisputed
Oates's fraudulent activity was reflected on the victim's credit report, and the victim
had to take steps to protect his identity from being linked to the fictitious business's
credit card account number. The "nature of the harm" meant to be targeted by this
enhancement is, in part, "that which results from using someone's identifying
information to establish new credit." United States v. Williams, 355 F.3d 893, 900
(6th Cir. 2003). When an actual individual's social security number is paired with a
fictitious name on a subsequently obtained means of identification, it does not
necessarily "sever the ties linking the victims and the Social Security numbers."
United States v. Melendrez, 389 F.3d 829, 836 (9th Cir. 2004). In this case, Oates's
use of a fictitious business name on the credit account did not sever the ties linking
the account to the victim. The account still directly affected the victim's individual
credit, and thus was a means of identifying an actual individual. Under these
circumstances, the district court correctly included the enhancement in its Guideline
calculations.

      B.     Blakely/Booker

      We do our best to summarize Oates's claim under Blakely and Booker.
Essentially, we understand Oates to argue a district court, in the period of time
between Blakely and Booker, violated the Fifth Amendment if it a) failed to advise

                                          -6-
a defendant at the plea hearing of the "relevant statutory maximum" (i.e., the
guideline range as calculated without enhancements based on judge-found facts), and
then b) sentenced a defendant in excess of that range at the time of sentencing. We
know this to be wrong for at least two reasons.

       First, to the extent Blakely may have modified our understanding of what
constitutes a "relevant statutory maximum," its holding did not apply to the federal
sentencing scheme until the Supreme Court so held in Booker. Between Blakely and
Booker, then, district courts were not obligated to advise defendants any differently
for purposes of Rule 11 of the Rules of Criminal Procedure than they had before
Blakely.

       Second, the remedy chosen by the Supreme Court to fix the Blakely Sixth
Amendment problem was to render the Guidelines advisory rather than mandatory.
Importantly, the remedy was not to adopt a different "relevant statutory maximum"
for sentencing purposes. See United States v. Pirani, 406 F.3d 543, 548 (8th Cir.
2005) (discussing the impact of Booker). The "relevant statutory maximum" for any
given offense remains the same as it always was, that is, the "actual" statutory
maximum set forth in the United States Code. As a consequence, neither Blakely nor
Booker require a district court to advise a defendant of anything other than the actual
statutory maximum at a plea hearing.3

      In this case, the only sentencing error committed by the district court under
Blakely and Booker was to treat the guidelines as mandatory rather than advisory.
The government urges us to review this claim for plain error, contending Oates


      3
        Oates concedes any error the district court committed in failing to advise him
of the twenty-year statutory maximum on the credit card fraud count was harmless
because the forty-one month sentence Oates received was less than the ten-year
maximum of which Oates received notice. See, e.g., United States v. Osment, 13 F.3d
1240, 1243 (8th Cir. 1994).

                                         -7-
elected "to be sentenced under the U.S. Sentencing Guidelines" and this election
waived his right to be sentenced under an advisory guideline system. We disagree.

       Oates's election to be sentenced under the Guidelines was immediately
followed by the statement he "wishes to preserve any appeal issues he may have
under Blakely v. Washington, 124 S. Ct. 2531 (2004)." This was not, as the
government contends, an attempt to have it both ways. The election to be sentenced
under the Guidelines was clearly qualified by the statement immediately following
it, by which Oates preserved a challenge to the district court's application of
mandatory guidelines. See Pirani, 406 F.3d at 549 (recognizing a Booker error is
preserved if the defendant below argued a Blakely error). Because Oates preserved
the issue, we review the claim for harmless error rather than for plain error.

       Under the harmless error standard as applied to this case, the burden is upon
the government "to establish that we do not have 'grave doubt' as to whether the error
substantially influenced the outcome of the proceedings." United States v. Haidley,
400 F.3d 642, 645 (8th Cir. 2005) (quoting Kotteakos v. United States, 328 U.S. 750,
764-65 (1946)). Nothing in this record gives us grave doubt Oates may have received
a shorter sentence under an advisory guideline regime. Oates's guideline range was
thirty-three to forty-one months. The district court sentenced Oates to forty-one
months, leaving unused all of its discretion under a mandatory system. Under such
circumstances, the Booker error is harmless. United States v. Perez-Ramirez, 415
F.3d 876, 878 (8th Cir. 2005).

                                         III

      We affirm the district court's sentence in all respects.
                      ______________________________




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