                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 05-1015
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      District of Minnesota.
Kelly Thomas Rieland,                     *
                                          *           [PUBLISHED]
             Appellant.                   *

                                ________________

                                Submitted: September 12, 2005
                                    Filed: January 3, 2006
                                ________________

Before ARNOLD, HANSEN, and GRUENDER, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       Kelly Thomas Rieland appeals the judgment of the district court1 entered after
he pleaded guilty to one count of conspiring to distribute in excess of 50 grams of
methamphetamine in violation of 21 U.S.C. §§ 846, 841(b)(1)(B), and one count of
possessing a firearm during a drug trafficking offense in violation of 18 U.S.C.
§ 924(c)(1)(A). He argues that he is entitled to be resentenced in light of United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 756-57 (2005) (rendering the United

      1
       The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
States Sentencing Guidelines "effectively advisory" rather than mandatory). We
affirm.

                                          I.

       In December 2003, Mr. Rieland was charged with six counts of drug trafficking
and firearm related offenses. In April 2004, he pleaded guilty to one count of
conspiracy to distribute methamphetamine and one count of carrying a firearm in
relation to a drug trafficking crime, in exchange for the Government's agreement to
dismiss the remaining counts against him.

       The plea agreement stated that Mr. Rieland would be sentenced in accordance
with the Sentencing Guidelines, and the parties stipulated to the factors that would be
used at sentencing. The agreed-upon drug quantity triggered a base offense level of
26, and the Government promised to move for a 3-level reduction for acceptance of
responsibility. The parties stipulated that no specific offense characteristics were
applicable. Assuming a base offense level of 23 and a criminal history category of V,
the plea agreement established a sentencing range of 84 to 105 months of
imprisonment on the drug count, plus a statutorily mandated 60-month consecutive
sentence on the firearm offense. The parties further agreed that there should be no
upward or downward departure from the applicable Guidelines range.

        The district court adopted the stipulated facts and sentenced Rieland to 84
months of imprisonment on the drug count (the bottom end of the stipulated
sentencing range), and a mandatory 60-month consecutive sentence on the firearm
offense. Less than a month after Rieland's sentencing hearing, the Supreme Court
decided Booker and declared that the Guidelines must be applied as advisory only
rather than mandatory. 125 S. Ct. at 756-57. Rieland now appeals, arguing that he
is entitled to be resentenced under an advisory Guidelines scheme.



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                                          II.

      We first consider whether Mr. Rieland preserved this claim of error. Mr.
Rieland was sentenced after the Supreme Court's decision in Blakely v. Washington,
542 U.S. 296 (2004), but prior to the Court's decision in Booker. In the plea
agreement, the parties attempted to avoid all Blakely-type issues by stipulating the
sentencing factors, identifying an appropriate Guidelines sentencing range, and
agreeing that no departures from that range were warranted. This agreement was
binding on the parties but not on the court. The agreement was silent on the
mandatory or advisory nature of the Sentencing Guidelines and did not reference any
challenge on this basis.

       At the first sentencing hearing, Mr. Rieland raised an issue concerning the
constitutionality of the Guidelines in a pro se motion, and at the same time, he sought
to terminate his counsel's representation and contested the mandatory nature of the
statutory requirement that the 60-month firearm sentence must run consecutive to the
sentence on the drug count. Because his attorney had not yet had an opportunity to
speak with Mr. Rieland about the pro se motions, the district court continued the
sentencing hearing to permit Mr. Rieland an opportunity to consider whether or not
he wished to proceed with his counsel's representation or on his pro se motions.

        At the second scheduled sentencing hearing, Mr. Rieland indicated a desire to
proceed with his attorney representing him. The court then sentenced Mr. Rieland,
after thoroughly explaining the mandatory nature of the statutory consecutive sentence
requirement. No objections were raised, renewed, or revived concerning the
constitutionality of the Guidelines or the sentence, and Rieland's counsel conceded at
oral argument on appeal that this issue has not been preserved. Accordingly, we
review only for plain error. United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir.)
(en banc), cert. denied, 126 S. Ct. 266 (2005).



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       The district court understandably treated the Guidelines as mandatory, and we
now know this to be error that is plain under Booker, satisfying the first two prongs
of plain error analysis. Pirani, 406 F.3d at 550, 553. To satisfy the third-prong of the
plain error test, however, the defendant must demonstrate a reasonable probability that
he would have received a more favorable sentence had the court known that the
Guidelines were advisory. Id. at 552; United States v. Jimenez-Gutierrez, 425 F.3d
1123, 1125 (8th Cir. 2005).

      Mr. Rieland does not argue that the district court would have imposed a more
favorable sentence under an advisory Guidelines scheme, but in any event, the record
would not support such a contention. Although the district court sentenced him at the
bottom of the agreed-upon sentencing range, "this fact 'is insufficient, without more,
to demonstrate a reasonable probability that the court would have imposed a lesser
sentence' under advisory Guidelines." United States v. Parsons, 408 F.3d 519, 522
(8th Cir. 2005) (quoting Pirani, 406 F.3d at 553). The district court did not express
any dissatisfaction or frustration with the mandatory Sentencing Guidelines range as
applied to Mr. Rieland. At the rescheduled sentencing hearing, the district court
recognized that Mr. Rieland's sentencing range was "extensive" and explained why
the court chose to sentence him at the bottom of that range:

      I went to the bottom end in hopes that a young man might have a future
      before he's done, and I hope very much that you pick better people to
      listen to and better people from whom to get advice, and ultimately, you
      tell me that you have made major changes in your own world view.

(Sent. Tr. Part II at 21.) This colloquy indicates that the district court, after
considering the nature and circumstances of Mr. Rieland's offense as well as his
character, was hopeful that Mr. Rieland could change his life if given the opportunity.
However, the court did not indicate that the bottom end of the agreed upon Guidelines
range was more than necessary in order to provide the rehabilitative opportunity in
this case, nor did the court indicate that the range in the plea agreement was excessive

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punishment or too harsh. In fact, our review of the whole record informs us that the
district court had conscientiously warned Mr. Rieland to think carefully before
proceeding with a pro se motion to invalidate his plea agreement precisely because it
offered him such beneficial terms. We find no indication in the record that the district
court would have imposed a more lenient sentence had the court known the Guidelines
were advisory, and if we are left to speculate about whether the court would have
imposed a lesser sentence, the defendant has not met his burden under the plain error
test. See Parsons, 408 F.3d at 522.

                                          III.

      Accordingly, we affirm the judgment of the district court.
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