                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-1998
                                  ___________

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

                             Submitted: December 13, 2004
                                Filed: May 13, 2005 (Corrected May 23, 2005)
                                 ___________

Before MELLOY, BRIGHT, and BENTON, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

       Melody April McCully appeals her sentence following a plea of guilty to
conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A), and § 846. On initial briefing, McCully's counsel moved to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967), and challenged McCully's
sentence on various grounds. In supplemental briefs, both McCully and her counsel
assert that the sentence violates the Sixth Amendment. Jurisdiction being proper
under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court affirms.
       While McCully's case was pending on appeal, the Supreme Court held that the
federal sentencing guidelines are unconstitutional and no longer mandatory. United
States v. Booker, 125 S. Ct. 738, 756-57, 769 (2005). Now, "district courts, while not
bound to apply the Guidelines, must consult those Guidelines and take them into
account when sentencing. . . . The courts of appeals review sentencing decisions for
unreasonableness." Booker, 125 S. Ct. at 767.

       After this court's independent review of the record pursuant to Penson v. Ohio,
488 U.S. 75, 80 (1988), McCully presents non-frivolous issues that her sentence 1)
violates the Sixth Amendment, and 2) is unreasonable.

       McCully claims her sentence violates the Sixth Amendment because she did
not admit to facts supporting the enhancements for obstruction of justice, possession
of a dangerous weapon, and drug quantity. Because McCully neither objected to the
enhancements on the basis of Apprendi, Blakely, or the Sixth Amendment, nor
challenged the constitutionality of the guidelines before the district court,1 this court
reviews for plain error. See United States v. Pirani, No. 03-2871, slip op. at 6-7 (8th
Cir. April 29, 2005) (en banc), applying United States v. Olano, 507 U.S. 725, 732-
36 (1993).

       Booker requires: "Any 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." See Booker, 125 S. Ct. at 756. Contrary to McCully's
argument, the Presentence Investigation Report ("PSR") explicitly provided facts
supporting all three enhancements. McCully did not object to any of the facts

      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.



                                          -2-
presented in the PSR. At sentencing, she stated she had reviewed the PSR, discussed
it with counsel, and when asked, said she had no objection to it.

      Under Federal Rule of Criminal Procedure 32(i)(3), a sentencing court "may
accept any undisputed portion of the presentence report as a finding of fact."
Therefore, a fact in the PSR not specifically objected to is admitted for purposes of
Booker. See United States v. Sayre, 400 F.3d 599, 602 (8th Cir. 2005) (Gruender, J.,
concurring). McCully's Sixth Amendment rights were not violated because she
admitted the facts supporting the enhancements by failing to object to the PSR.

       The district court, however, plainly erred by applying the guidelines as
mandatory, rather than advisory. Pirani, slip op. at 11 ("All sentences imposed by
the district court that mistakenly (though understandably) believed the Guidelines to
be mandatory contain Booker error."). The defendant must establish that the error
affected substantial rights, that is, a reasonable probability of a lesser sentence.
Pirani, slip op. at 7, 12. For Booker error, the defendant can prove this by showing
that "the district court would have imposed a more favorable sentence under the
advisory guidelines regime mandated by Booker." Id. at 12.

        McCully was sentenced at the bottom of the applicable guidelines range, but
this is insufficient, without more, to demonstrate a reasonable probability of a lesser
sentence. See Pirani, slip op. at 12. The record on appeal does not indicate that the
district court would have imposed a more favorable sentence absent the Booker error.
See id. Therefore, McCully has not met her burden of proving prejudicial plain error.




                                         -3-
       Finally, McCully claims the sentence is excessive.2 Although she does not
state her claim in terms of reasonableness, this court now reviews the sentence for
unreasonableness. See Booker, 125 S. Ct. at 767. Considering the then-mandatory
guidelines, the district court imposed a 168-month sentence – at the bottom of the
guidelines range. Because this is the sentence she requested, generally she cannot
complain on appeal. See United States v. Harrison, 393 F.3d 805, 808 (8th Cir.
2005). To the extent McCully's statements at sentencing qualify her counsel's request
for the 168-month sentence, this court reviews the record in light of the factors in 18
U.S.C. § 3553(a), and finds that the sentence is not unreasonable.

       This court thus affirms, and denies counsel's motion to withdraw because, at
this time, the Sixth Amendment and reasonableness arguments are not frivolous.
                        _____________________________




      2
       McCully's counsel, in the Anders brief, notes that this court has held that it
lacks jurisdiction to review for excessiveness those sentences that are within the
applicable guidelines range. See United States v. Smotherman, 326 F.3d 988, 989
(8th Cir.), cert. denied, 540 U.S. 912 (2003); United States v. Garrido, 38 F.3d 981,
986 (8th Cir. 1994); United States v. Mihm, 13 F.3d 1200, 1205 (8th Cir. 1994);
United States v. Woodrum, 959 F.2d 100, 101 (8th Cir. 1992); United States v.
Gordon, 974 F.2d 97, 100 (8th Cir. 1992); United States v. Onwuemene, 933 F.2d
650, 651 (8th Cir. 1991).

       Booker commands that: "The courts of appeals review sentencing decisions for
unreasonableness." Booker, 125 S. Ct. at 767. This court therefore exercises
jurisdiction over McCully's claim in order to review for unreasonableness, pursuant
to the factors in 18 U.S.C. § 3553(a). See id.

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