                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2300
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Soheir A. Abu Nahia,                    *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: January 9, 2006
                                Filed: February 3, 2006
                                 ___________

Before LOKEN, Chief Judge, BEAM, and McMILLIAN,1 Circuit Judges.
                              ___________

BEAM, Circuit Judge.

     On remand from the United States Supreme Court, we reverse this case and
remand for resentencing.




      1
        The Honorable Theodore McMillian died on January 18, 2006. This opinion
is being filed by the remaining judges of the panel pursuant to 28 U.S.C. § 46(d) and
8th Cir. R. 47E.
I.    BACKGROUND

       A more thorough review of the underlying facts and initial arguments raised
on appeal in this matter may be found at United States v. Rashid, 383 F.3d 769 (8th
Cir. 2004), cert. denied, 542 U.S. 1080 (2005), and cert. granted, judgment vacated
by, Abu Nahia v. United States, 126 S. Ct. 300 (2005) (hereinafter Rashid I). This
case is now before us on remand from the Supreme Court for limited review in light
of United States v. Booker, 543 U.S. 220 (2005). No sentencing issues were initially
raised on appeal to the Eighth Circuit. Rashid, 383 F.3d at 772.

       A jury convicted Nahia of conspiracy to commit bank fraud and bank fraud.
The pre-sentence investigation report calculated Nahia's total offense level at twenty-
six and her criminal history category as one, resulting in a sentencing range of sixty-
three to seventy-eight months. Nahia requested a downward departure, representing
to the court that she would waive deportation proceedings. The government objected
to her request and the court agreed that no departure was warranted. However, the
court did note its uncertainty that the circumstances of the case warranted a sixty-
three-month sentence stating, "I don't know that this circumstance, quite frankly,
warrants a 63 month term of imprisonment."

       The district court sentenced Nahia to sixty-three months' imprisonment, three
years supervised release, and a special assessment of $200.00. In Rashid I, we
affirmed the judgment of the district court finding that the government had
established "materiality" as a matter of law. Id. at 778-79. Nahia then filed a writ of
certiorari with the United States Supreme Court claiming, for the first time, that she
should be resentenced in light of United States v. Booker, 543 U.S. 220 (2005). The
Supreme Court vacated the sentence and remanded to this court for consideration.




                                         -2-
II.    DISCUSSION

       Nahia receives the benefit of Booker in this case. Because she failed
(understandably) to raise any challenge to the constitutionality of the mandatory
guidelines at the time of sentencing as she was sentenced prior to such jurisprudence,
we review the sentence imposed for plain error. United States v. Pirani, 406 F.3d
543, 549-50 (8th Cir.) (en banc), cert. denied, 126 S. Ct. 266 (2005). Plain error is
governed by the four-part test of United States v. Olano, 507 U.S. 725 (1993). Nahia
bears the burden of proving plain error and must establish the following: (1) error,
(2) that is plain, and (3) that affects substantial rights. If all three of these conditions
are met, an appellate court may then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466-67 (1997)
(interpreting Olano, 507 U.S. at 734-35).

       Under Pirani, mandatory use of the guidelines constitutes "error" that is "plain."
Pirani, 406 F.3d at 550. The government concedes that the district court applied the
guidelines as mandatory and that this constituted an "error" that was "plain."
Therefore, we turn to the third element of the Olano plain-error test. Here, Nahia
must show a reasonable probability, based on the record as a whole, that but for the
error of applying the guidelines mandatorily she would have received a more
favorable sentence. Id. at 553. In its supplemental brief, the government truthfully
points out that resolution of Nahia's burden is a close issue and felt "duty-bound" to
bring the district court's comments at sentencing to our attention. We acknowledge
the government's role in this instance as an officer of the court and agree with its
assessment. The district court's expression of uncertainty that a sixty-three month
sentence was appropriate establishes a reasonable probability that Nahia would have
received a more favorable sentence under an advisory guidelines scheme.
       Because there is a reasonable probability that Nahia would have received a
lesser sentence under an advisory regime, we must determine whether the fourth

                                            -3-
Olano factor is satisfied, i.e., whether the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings. Johnson, 520 U.S. 466-67.
This court has repeatedly chosen to exercise its discretion under the fourth factor to
vacate the defendant's sentence. See, e.g., United States v. Jimenez-Gutierrez, 425
F.3d 1123, 1127 (8th Cir. 2005) (Colloton, J., concurring); United States v. Betterton,
417 F.3d 826, 833 (8th Cir. 2005) (Hansen, J., concurring). And, while we reiterate
our colleagues' concerns that a conclusory analysis of the fourth Olano factor violates
Olano's admonition that "a plain error affecting substantial rights does not, without
more, satisfy the [plain-error] standard, for otherwise the discretion afforded by [Fed.
R. Crim. P.] 52(b) would be illusory," 507 U.S. at 737, we nevertheless feel
compelled to follow prior circuit precedent. Cf. Betterton, 417 F.3d at 833-36.

        We therefore exercise our discretion to vacate Nahia's sentence and remand to
the district court for resentencing. "'However, nothing in this opinion should be
construed as suggesting [a] more lenient sentence[] . . . [is] necessarily warranted or
would be reasonable. The district court must conduct its resentencing analyses in the
first instance.'" Id. at 833 (quoting United States v. Plumman, 409 F.3d 919, 932 (8th
Cir. 2005)).

III.   CONCLUSION

       For the reasons stated herein we reverse the sentence and remand to the district
court for resentencing. Our hope is that this may be done expeditiously.2


       2
       Nahia's tendered pro se supplemental brief is accepted. No further briefing is
necessary given the approach the government has taken in its briefing to the court.
Accordingly, we deny the pending Motion of Appellant for Leave to Withdraw
Anders Brief, deny Ms. Hunt's pending Motion to Withdraw as Counsel for Nahia and
deny Nahia's Motions to Substitute Counsel. We additionally note that if and when
Nahia chooses to appeal after resentencing, she may renew her motion for substitute
counsel.

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