                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2782
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Victor Henderson,                        *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: February 14, 2005
                                 Filed: May 26, 2005
                                  ___________

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

SMITH, Circuit Judge.

       Victor Henderson pled guilty to conspiracy to possess with intent to distribute
50 grams or more of cocaine base from January 1, 2001 through August 30, 2003, in
violation of 21 U.S.C. § 846. Based on Henderson's prior convictions, the presentence
investigation report calculated Henderson's criminal history at category V. The
district court1 found that category V substantially over-represented the seriousness of
Henderson's criminal history. Departing downward, the district court sentenced


      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
Henderson as a category IV offender and imposed a sentence of 188 months'
imprisonment and 5 years supervised release. We affirm.

       Henderson argues on this appeal, as he did in the district court, that because of
Blakely v. Washington, 542 U.S. , 124 S. Ct. 2531 (2004), the jury, not the judge,
should have determined whether his prior convictions were related to the instant
offense. If related to the instant offense, the prior convictions could not be counted
against Henderson for purposes of criminal history point calculation. The United
States Sentencing Guidelines provide that "[p]rior sentences are not considered
related if they were for offenses that were separated by an intervening arrest."
U.S.S.G. § 4A1.2 cmt. n.3. The district court found that Henderson's prior convictions
were unrelated and consequently countable. Henderson contends that finding had to
be made by a jury beyond a reasonable doubt.

       When Henderson was sentenced, the United States Supreme Court's decision
in United States v. Booker, 125 S. Ct. 738 (2005), was pending and it was unclear
whether and to what extent Blakely would apply to the United States Sentencing
Guidelines. The applicability of Blakely to the Guidelines is no longer in question.
In Booker, the Supreme Court instructed that under the federal sentencing guidelines,
"[a]ny 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." Id. at 756. The Court invalidated the Guidelines under the Sixth
Amendment to the extent that they were applied in a mandatory manner. Id. at 764.
While district courts are no longer bound to apply the Guidelines, the Guidelines must
be consulted and taken into account when sentencing. Id. at 767. Booker also
reaffirmed the exception in Apprendi v. New Jersey, 530 U.S. 466 (2000), for prior
convictions. Booker, 125 S. Ct. at 756. See also Shepard v. United States, 125 S. Ct.
1254, 1262–63 (2005) (affirming Apprendi exception for prior convictions).



                                          -2-
       It is undisputed that the prior sentences used to determine Henderson's criminal
history level were separated by intervening arrests. Thus, the district court did not
make any factual findings which run afoul of the Sixth Amendment in determining
that Henderson's prior sentences were unrelated. The non-constitutional Booker
violation in this case, i.e., the district court's failure to treat the Guidelines as
advisory, was harmless as Henderson received a downward departure to a reasonable
sentence. The district court's sentence is affirmed.
                         ______________________________




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