                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1078
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Carla Marshall,                         *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                        *
                                   ___________

                             Submitted: March 4, 2005
                                Filed: June 2, 2005
                                 ___________

Before RILEY, SMITH, and BENTON, Circuit Judges.
                            ___________

PER CURIAM.

       Carla Maria Marshall appeals, arguing that the district court1 violated United
States v. Booker, 125 S.Ct. 738 (2005), by enhancing her sentence based on facts not
proven beyond a reasonable doubt, and by treating the Sentencing Guidelines as
mandatory. Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
       By the plea agreement, Marshall pleaded guilty to distribution of cocaine, and
aiding and abetting the distribution of cocaine. 21 U.S.C. §§ 841(a)(1) and (b)(1)(C);
18 U.S.C. § 2. The Presentence Investigation Report prescribed offense level 26, and
criminal history category II – for a sentence range of 70 to 87 months. (The range
was calculated based on Marshall's stipulation of 5 to 20 grams of crack-cocaine.)
By the plea agreement, Marshall was eligible for a downward adjustment for
acceptance of responsibility, potentially resulting in offense level 23, category II –
for a sentence range of 51 to 63 months.

        Before sentencing, Marshall violated the terms of her release by failing urine
tests (testing positive for marijuana and cocaine), failing to appear for an additional
test, associating with known drug offenders, and refusing to self-surrender upon court
order. At sentencing, the district court denied an acceptance-of-responsibility
adjustment and added an enhancement for obstruction of justice. The result was
offense level 28, category II – for a sentence range of 87 to 108 months. The district
court sentenced Marshall to 87 months.

                                          I.

      Marshall argues that the district court violated her Sixth Amendment rights
because it enhanced her sentence for obstruction of justice, which was not proven
beyond a reasonable doubt. See Booker, 125 S.Ct. at 746-47 (citing Blakely v.
Washington, 542 U.S. ---, 124 S.Ct. 2531, 2537 (2004)). She complains that the
enhancement inflated the range from 70 to 87 months to 87 to 108 months. This court
reviews for clear error. United States v. Mathijssen, 2005 WL 1005003, at * 2 (8th
Cir. May 2, 2005).

       The Sixth Amendment is violated if a judge imposes a sentence that is not
solely based on "facts reflected in the jury verdict or admitted by the defendant."
Blakely,124 S.Ct. at 2537. In Booker, the Supreme Court held: "Any fact (other than

                                         -2-
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." Booker,
125 S.Ct. 738 at 756. Accordingly, a sentence does not offend the Sixth Amendment
if the defendant admits the facts supporting the enhancement. United States v.
Yahnke, 395 F.3d 823, 825-26 (8th Cir. 2005).

       At sentencing, Marshall conceded she failed to appear for pre-trial services due
to fear and poor decision-making. She has never contended that an external source
prevented her from complying. The Guidelines advise that an enhancement is
appropriate where the defendant willfully fails to appear for judicial proceedings. See
U.S.S.G. § 3C1.1, cmt. n. 4(e). Because Marshall admitted the facts supporting
obstruction of justice, the sentence did not violate her Sixth Amendment rights.

                                           II.

      Marshall attacks the district court's denial of a downward adjustment for
acceptance of responsibility. She emphasizes that she admitted her guilt and assisted
the government in locating a co-defendant.

      This court reviews a district court's determination of acceptance of
responsibility for clear error. United States v. Patten, 397 F.3d 1100, 1104 (8th Cir.
2005). A district court's denial of a reduction for acceptance of responsibility will not
be reversed unless the facts clearly establish that a defendant has accepted personal
responsibility. United States v. Card, 390 F.3d 592, 594 (8th Cir. 2004); see also
U.S.S.G. § 3E1.1.

     The district court denied the acceptance-of-responsibility adjustment because
Marshall (admittedly) continued to associate with known drug offenders, failed to
submit to an additional drug test, and refused to self-surrender in accordance with a

                                          -3-
court order. A court may deny acceptance of responsibility where the defendant fails
to surrender for judicial proceedings. See United States v. Shinder, 8 F.3d 633, 635
(8th Cir. 1993). Moreover, the court found that Marshall obstructed justice. The
Guidelines state that an enhancement for obstruction of justice generally indicates the
defendant has not accepted responsibility. U.S.S.G. § 3E1.1, n. 4; see also United
States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001).

       Marshall argues that the obstruction-of-justice enhancement does not
necessarily preclude an acceptance-of-responsibility adjustment. See United States
v. Honken, 184 F.3d 961, 967-968 (8th Cir. 1999). True, in an "extraordinary case"
a court may sanction a defendant for obstruction, yet grant an adjustment for
acceptance of responsibility. See U.S.S.G. § 3E1.1, n. 4. Marshall's acceptance of
responsibility is not extraordinary. First, Marshall did not voluntarily cease
obstructing justice. She was in custody within one day of the court order only
because the United States Marshal arrested her. Second, although Marshall denies
(ever) using cocaine, traces of cocaine were discovered in her urine. The district
court did not clearly err.

                                         III.

       Marshall asserts that her sentence, under a mandatory sentencing scheme, is
erroneous under Booker,125 S.Ct. at 756-57, 769. Because Marshall did not object
to the Guidelines or make an Apprendi or Blakely argument in the district court, this
court reviews for plain error. United States v. Pirani, 2005 WL 1039976, at *3 (8th
Cir. Apr. 29, 2005) (en banc). To prevail, the defendant must show: 1) error, 2) that
is plain, 3) that affects substantial rights, 4) and seriously affects the fairness,
integrity, or public reputation of judicial proceedings. United States v. Cotton, 535
U.S. 625, 631 (2002).




                                         -4-
        Here, the first two factors are satisfied: the district court erred by
(understandably) treating the Guidelines as mandatory, and the error is plain at the
time of appellate review. See Pirani, 2005 WL 1039976, at *4. Marshall, however,
fails to show that the error affects a substantial right, that is, a reasonable probability
of a lesser sentence. See id. at *5. First, though the sentence is at the bottom of the
Guidelines range, this "is insufficient, without more, to demonstrate a reasonable
probability that the court would have imposed a lesser sentence absent the Booker
error." Id. at *7. Second, the district court stated that it would impose an 87-month
sentence, if it were considering the (original) 70 to 87 month range. Third, nothing
in the record indicates the district court would have given any lesser sentence in this
case. Marshall has not met her burden of demonstrating a reasonable probability of
a more favorable sentence. See United States v. Finck, 2005 WL 1109474, at *5-6
(8th Cir. May 11, 2005).2

      The judgment of the district court is affirmed.
                     ______________________________




      2
      Marshall does not request unreasonableness review, either in her original or
supplemental briefing, nor does this court find a plain error. See Rule 52(b); United
States v. Olano, 507 U.S. 725, 732, 736 (1993).

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