                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2551
                                    ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the District of
                                      * Minnesota.
Miguel Angel Vargas,                  *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: June 20, 2005
                                 Filed: August 30, 2005
                                  ___________

Before MELLOY, HEANEY, and GRUENDER, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

        Miguel Angel Vargas pled guilty, pursuant to a plea agreement, to conspiring
to distribute, and possessing with intent to distribute, methamphetamine. In exchange
for the guilty plea, the government agreed to dismiss an additional count against
Vargas. In the plea agreement, the parties stipulated to a base offense level of 28. By
the express terms of the plea agreement, Vargas agreed to be sentenced according to
the federal Sentencing Guidelines. The plea agreement also provided that the parties’
stipulations were not binding upon the district court1 and that the district court was
free to make its own determinations as to which factors would affect Vargas’s
sentence.

      On June 3, 2004, the district court found a base offense level of 32 which was
the base offense level suggested in the presentence report. The higher offense level
was premised on the presentence report’s allegation that Vargas was in possession of
104.67 grams of actual methamphetamine, rather than the 219.14 grams of a mixed
substance containing methamphetamine stipulated by the parties. Vargas did not
object to the base offense level finding and declined to withdraw his guilty plea. In
adopting the recommendations of the presentence report, the district court found that
Vargas was subject to a Sentencing Guideline range of 70 to 87 months
imprisonment. The district court sentenced Vargas to a bottom-of-the-range sentence
of 70 months.

       Vargas now appeals his sentence based upon the Supreme Court’s opinions in
Blakely v. Washington, 124 S.Ct. 2531 (2004) and United States v. Booker, 125 S.Ct.
738 (2005). Because Vargas raises this issue for the first time on appeal, we review
for plain error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005). Under
Pirani, a defendant must show error that is plain and that affected his or her
substantial rights. Id. at 550. To make the showing of substantial rights
infringement, a defendant must show a reasonable probability that the district court
would have granted a lesser sentence had the district court not treated the Sentencing
Guidelines as mandatory. Id. at 552.

     Vargas argues that his sentence was in violation of the Sixth Amendment under
Booker because a jury did not find beyond a reasonable doubt the amount of actual


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

                                         -2-
methamphetamine that resulted in a higher sentence. This is sufficient to constitute
error under Pirani.

       However, there is no prejudice in the present matter. Here, the district court
imposed a bottom-of-the-range sentence. There is nothing else in the record to
indicate that the district court would have granted a lesser sentence had it treated the
Sentencing Guidelines as advisory. Under Pirani, a bottom-of-the-range sentence
alone is insufficient to make the required showing of prejudice. Id. at 553. As a
result, Pirani forecloses relief on the facts of this case.

      Accordingly, we affirm the judgment of the district court.

HEANEY, Circuit Judge, concurring.

       I adhere to the view stated by Judge Bye in Pirani, that defendants who did not
properly preserve their Booker claims in the district court are nonetheless generally
entitled to resentencing under a constitutional regime. See United States v. Pirani,
406 F.3d 543, 562-67 (8th Cir. 2005) (en banc) (Bye, J., dissenting). Because a
majority of our court has held to the contrary, however, I concur.
                        ______________________________




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