                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ____________

      No. 03-3478
      ____________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Alfred K. Ryder,                      *
                                      *
            Appellant.                *

      ____________
                                             Appeals from the United States
      No. 03-3479                            District Court for the
      ____________                           Southern District of Iowa.

United States of America,             *
                                      *           [PUBLISHED]
            Appellee,                 *
                                      *
      v.                              *
                                      *
Mary Ann Ryder,                       *
                                      *
            Appellant.                *

                              ________________

                              Submitted: May 11, 2004
                                  Filed: July 14, 2005
                              ________________

Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
                                ________________

HANSEN, Circuit Judge.

       Alfred K. Ryder and his wife Mary Ann Ryder each appeal their respective
convictions related to bankruptcy fraud in these consolidated appeals. Following oral
argument, both appellants also filed supplemental motions, which we have
considered, seeking review of their respective sentences under Blakely v.
Washington, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738
(2005). We affirm both of the defendants' convictions, but remand to the district
court for resentencing in light of Booker.

                                   I. Background

        On July 6, 1995, Alfred and Mary Ann Ryder, as individuals, filed for
protection against creditors under Chapter 7 of the Bankruptcy Code. The Ryders
took the position that all of their farming assets were owned by a corporation rather
than by themselves personally, and they did not disclose in their personal bankruptcy
schedules any real property, livestock, crops, or farm equipment. Based on their
failure to disclose assets from their farming operation to the bankruptcy trustee
throughout the drawn out bankruptcy proceedings, a grand jury indicted the Ryders
on federal bankruptcy fraud charges in December 2002. On May 9, 2003, a jury
found Alfred and Mary Ann guilty on several counts. The bankruptcy proceeding
still had not been concluded at the time of the criminal trial.

      Following a jury's verdict, we state the facts in the light most favorable to the
verdict. United States v. Maxwell, 363 F.3d 815, 817 (8th Cir. 2004). Alfred and
Mary Ann Ryder have farmed in southern Iowa for many years. At the time they filed
for bankruptcy, they, or entities they controlled, owned approximately 4,300 acres of
farmland in Iowa, Missouri, and Illinois. Alfred took care of the business end of the


                                          2
farming operation while Mary Ann primarily provided manual labor. Alfred's
brother, Thomas Ryder, also farmed in Illinois and incorporated Ryder Farms, Inc.
of Illinois in the late 1970s. Alfred and Mary Ann incorporated Ryder Farms, Inc. of
Iowa1 in 1986. Numerous deeds were recorded throughout the 1980s, purporting to
convey various parcels of farmland between the Ryders and the two corporations.
The corporate documents of Ryder Farms, Inc. of Iowa varied from year to year
regarding the named officers and directors as well as whether the corporation owned
any farmland. Documents filed with the Secretary of State listed Alfred and Mary
Ann as the named officers and directors through 1995, but the documents were
changed after the Ryders filed for bankruptcy to list Thomas Ryder, Lucille Ryder,
and Jane Ryder as the named officers and directors, even though Lucille had died in
July 1994.

       In the Chapter 7 proceedings, Alfred Ryder originally denied any ownership
interest in Ryder Farms, Inc. of Iowa. Throughout various hearings, Alfred testified
that he and Mary Ann had given their stock in Ryder Farms, Inc. of Iowa to Thomas
and Lucille Ryder long before they filed for bankruptcy. He also testified that Ryder
Farms, Inc. of Iowa owned no land, and that it had transferred land in the past to
Ryder Farms, Inc. of Illinois, which it then leased back from Ryder Farms, Inc. of
Illinois. Alfred changed his testimony in a May 1999 bankruptcy hearing, testifying
that the farmland was owned by Ryder Farms, Inc. of Iowa. Thomas Ryder’s son, a
director of Ryder Farms, Inc. of Illinois, testified at the criminal trial that Ryder
Farms, Inc. of Illinois had never owned any real property.

      The Ryders also failed to disclose to the bankruptcy trustee their entitlement
to government subsidy payments for their participation in the conservation reserve


      1
        Both corporations were incorporated as "Ryder Farms, Inc.," but for ease of
discussion, we will refer to the corporation formed by Thomas as "Ryder Farms, Inc.
of Illinois" and the corporation formed by Alfred as "Ryder Farms, Inc. of Iowa."
                                         3
program (CRP), whereby they, as individuals, received government payments for
keeping part of their farmland idle. Until 1996, they had reported to the relevant
county Farm Service Agency (FSA) that the producer for the land involved in the
CRP program was Ryder Farms, Inc. of Iowa, of which they each owned a 50%
interest. They changed the reporting in 1996 (after they filed for bankruptcy) to list
themselves individually as the "producers" to maximize the amount of payments for
which they were eligible under the program. In changing the listed "producer" for
subsidy purposes, the Ryders reported to the FSA that they had dissolved Ryder
Farms, Inc. of Iowa.

        Additionally, the Ryders concealed Mary Ann's interest in land in Illinois and
income she received from renting that property. Mary Ann and her two sisters
inherited farmland in Scott County, Illinois, from their grandfather following the
termination of their father's life estate upon his death in 1988. Mary Ann and her
sisters held the land as tenants in common. Although there was no evidence that
Mary Ann's grandfather's will was ever probated, Mary Ann's sister, Margaret
McGlasson, testified that they had inherited the land and began renting the land to
Bruce Dahman after her father's death, dividing the profits equally. Mary Ann paid
her share of property taxes on the land. Neither the Scott County, Illinois, land nor
an entitlement to the rent payments was listed on the bankruptcy schedules, and both
Alfred and Mary Ann told the bankruptcy trustee that they had no interest in any land
in Illinois.

      The evidence at trial also showed that the Ryders failed to disclose ownership
of land in Wayne County, Iowa. A few months after filing for bankruptcy, Alfred
Ryder purchased 244 acres of farmland in Wayne County, Iowa, by posing as his
brother, Thomas. The property was placed in the name of Napland Farms (Napland
is Mary Ann's maiden name), which Alfred claimed was formed by a group of
hunters. Although Alfred told the bankruptcy trustee that none of his or Mary Ann's
funds were used by Napland Farms to purchase the land, Mary Ann's social security

                                          4
number was associated with Napland Farms. The land was paid for with a $30,045
cashier's check listing Napland Farms as the remitter and a $30,000 money order
purporting to bear the signature of Thomas Ryder. Thomas Ryder's son testified at
the criminal trial that the signature was not his father's. The attorney representing the
estate from which Alfred purchased the land also testified at the criminal trial and
identified Alfred as the person who posed as Thomas Ryder in the transaction.

       Even after the trustee discovered the Ryders' interest in various parcels of land
and attempted to bring the property into the bankruptcy estate, Alfred Ryder
continued to thwart the trustee's efforts. On January 12, 2000, Alfred, acting in his
capacity as president, filed a Chapter 12 bankruptcy petition on behalf of Ryder
Farms, Inc. of Iowa in the Western District of Missouri, listing the farmland, farm
equipment, crops, and livestock in which he had claimed to have no interest in the
Chapter 7 bankruptcy case. The Chapter 12 filing triggered an automatic stay for
actions involving any of the listed property. The Chapter 12 case was transferred to
the Southern District of Iowa and dismissed by the bankruptcy court that was
presiding over the Chapter 7 case. Mary Ann was not involved in the Chapter 12
filing. Alfred later filed a Chapter 11 petition on behalf of Ryder Farms, Inc. of Iowa
in the Western District of Missouri on March 8, 2002. Again, Mary Ann was not
involved in the Chapter 11 filing. It too was transferred to the Southern District of
Iowa and dismissed by the bankruptcy court. Prior to the dismissal, the automatic
stay triggered by the Chapter 11 filing prevented the Chapter 7 trustee from
proceeding with a planned sale of land in Missouri.

      Alfred and Mary Ann were indicted as codefendants on one count of conspiring
to conceal assets, 18 U.S.C. § 371, and four counts of concealing assets, 18 U.S.C.
§ 152(1)&(2). Alfred was also indicted on thirteen counts of money laundering, 18
U.S.C. § 1956(a)(1)(B)(i). A jury convicted Alfred of the conspiracy count, all four
counts of concealment of assets, and nine of the money laundering counts. A final
order of forfeiture in the form of a personal money judgment in the amount of

                                           5
$136,301.79 was entered upon the jury's guilty verdict on the money laundering
counts. See 18 U.S.C. § 982(a)(1); Fed. R. Crim. P. 32.2(b)(3). The district court
sentenced Alfred to 41 months of imprisonment. Mary Ann was convicted of the
conspiracy count and two of the concealment counts–one count related to real
property in Illinois, and one count related to farm equipment, livestock, and crops.
She was acquitted of the other two concealment counts. Mary Ann received a
sentence of twelve months and one day. On appeal, Alfred argues that there was
insufficient evidence presented at trial to support the money laundering convictions.
Mary Ann argues that there was insufficient evidence to support her conviction on
any of the counts, that the district court erroneously allowed hearsay testimony, and
that the district court erred in instructing the jury on reasonable doubt.

                                II. Conviction Issues

A.    Alfred Ryder

       Following a jury verdict in favor of the government, "[w]e review the
sufficiency of the evidence de novo, viewing evidence in the light most favorable to
the government, resolving conflicts in the government's favor, and accepting all
reasonable inferences that support the verdict." United States v. Parker, 364 F.3d
934, 943 (8th Cir. 2004) (internal marks omitted). Evidence sufficiently supports a
conviction as long as any rational jury could have found the essential elements of the
offense beyond a reasonable doubt. United States v. Vanhorn, 296 F.3d 713, 717 (8th
Cir. 2002), cert. denied, 537 U.S. 1167 (2003). "[W]e will reverse only if the jury
must have had a reasonable doubt concerning one of the essential elements of the
crime." Id. (internal marks omitted).

      The money laundering charges against Alfred were based on checks
representing farm income that were deposited into various checking accounts after
the Ryders filed for bankruptcy and that were not disclosed to the bankruptcy trustee.

                                          6
To establish the money laundering counts, the government needed to prove that
Alfred "conducted or attempted to conduct a financial transaction, knowing that the
property involved in the transaction represented the proceeds of unlawful activity,
and knowing the transaction was designed to conceal or disguise the nature, location,
source, ownership, or control of the proceeds of the unlawful activity." United States
v. Frank, 354 F.3d 910, 919 (8th Cir. 2004); see also 18 U.S.C. § 1956(a)(1)(B)(i).



        Alfred contends that the government failed to establish the first element of each
of the money laundering counts–that he conducted a financial transaction–because
there was no evidence that he deposited any of the checks into the checking accounts.
We disagree. The government introduced into evidence copies of each of the checks
that formed the basis for the money laundering counts. Other documents containing
Alfred’s signature were also introduced into evidence. FBI Agent Kevin Kohler
testified about his review of the transactions flowing through the various accounts.
Five of the twelve checks were deposited into an account opened by Alfred and titled
in the name of Ryder Farms, Inc. These checks were issued by MFA-Agri-Services,
Prairie-Vu Enterprises, or Lamoni Livestock Auction. Given Alfred's control over
the account, evidence that Alfred conducted all of the business transactions of the
farming operation, and the jury's ability to compare the endorsements on the checks
with other known samples of Alfred's signature, there was sufficient evidence to
support Alfred's convictions related to counts 6, 10, 11,13, and 14.

       Counts 8, 9, 15, and 16 involve checks issued by Bruce Dahman to Mary Ann
Ryder for lease payments on the land that Mary Ann owned with her sisters. Two of
the checks (counts 15 and 16) were deposited into an account on which Mary Ann
was the only signatory. Although the evidence is less abundant that Alfred engaged
in a financial transaction as to these two counts, there was evidence that Alfred
controlled the business side of the farming operation and that Alfred signed Mary
Ann's name on other documents, including the farm subsidy program papers. Mr.

                                           7
Dahman testified that Alfred was the main negotiator for Mary Ann and her sisters
concerning the land they inherited from their grandfather. Additionally, the jury was
able to compare the endorsements on the checks with Alfred's signature on other
documents. We cannot say that no jury could have found from this evidence that
Alfred deposited the checks into the account.

       The other two Dahman checks (counts 8 and 9) were deposited into an account
in the name of Napland Farms, listing "Thos. Ryder" as signatory. Thomas Ryder's
son testified that the signature card for this account did not bear his father's signature.
This evidence, along with evidence that Alfred impersonated Thomas in purchasing
land in the name of Napland Farms, provides sufficient circumstantial evidence to
support the jury's verdict on counts 8 and 9.

B.     Mary Ann Ryder

      1.     Sufficiency of the Evidence

      Mary Ann Ryder was convicted of concealing real property in Illinois, and of
concealing crops, livestock, and farm equipment from the bankruptcy trustee, as well
as conspiring with Alfred to conceal assets. To establish the concealment counts, the
government was required to prove beyond a reasonable doubt that Mary Ann
"knowingly and fraudulently conceal[ed] from a . . . trustee . . . any property
belonging to the estate of a debtor." 18 U.S.C. § 152(1). Mary Ann takes issue with
the "knowingly and fraudulently" elements of the crime, arguing that she lacked the
requisite intent to have committed the offense of concealing, and therefore conspiring
to conceal, assets because she did not know that assets that should have been listed
were omitted from the bankruptcy schedules. At most, she argues, she acquiesced in
her husband's position that assets allegedly belonging to Ryder Farms, Inc. of Iowa
were not property of the bankruptcy estate.



                                            8
       Although Mary Ann claims that she was unaware of what assets were supposed
to be listed on the schedules, she signed the petition attesting that it listed all of her
assets. Mary Ann testified at a bankruptcy proceeding that she had no interest in
property located in Illinois, despite the fact that she inherited property from her
grandfather in 1988, received rent payments from Bruce Dahman since that time, and
annually paid taxes on the property. The property was not listed on the schedules and
had nothing to do with Ryder Farms. Mary Ann's claim that she merely acquiesced
in Alfred's belief that the farming operation was owned by Ryder Farms, Inc. of Iowa
is unavailing as to this property. The evidence supports her conviction for knowingly
and fraudulently concealing real property in Illinois from the bankruptcy trustee.

       We also conclude that the evidence sufficiently supports her conviction for
concealing crops, livestock, and farm equipment from the bankruptcy trustee. Checks
from the farming operation were deposited into bank accounts in the name of Mary
Ann alone or Mary Ann as a joint owner with Alfred and Thomas. These accounts
were not listed on the bankruptcy schedule and checks deposited after the Ryders
filed for bankruptcy were not reported to the trustee. Some of the checks deposited
into these personal accounts included payments from the sale of livestock and crops,
but no livestock, crops, or equipment–including equipment that Mary Ann used on
a daily basis in the farming operation–were listed on the bankruptcy schedules.

        Mary Ann makes the alternative argument that even if there was sufficient
evidence in the abstract to submit the case to the jury, her conviction is so against the
weight of the evidence that a new trial is warranted. We will reverse a district court's
denial of a motion for a new trial only if the court clearly abused its discretion such
that a serious miscarriage of justice may have occurred. See United States v.
Huerta-Orozco, 272 F.3d 561, 565-66 (8th Cir. 2001). In deciding whether a
miscarriage of justice may have occurred, the district court may weigh the evidence
for itself and evaluate the credibility of the witnesses without giving the government
the benefit of inferences to be drawn from the evidence. Id. at 565. Having carefully

                                            9
reviewed the record and the transcript of the trial, we cannot say that the district court
clearly erred in denying Mary Ann a new trial. Although Mary Ann was clearly the
less culpable of the Ryders, the evidence does not so weigh against her conviction as
to convince us that a miscarriage of justice may have occurred.



      2.     Hearsay Testimony

       Mary Ann claims that the district court committed reversible error by allowing
her sister, Margaret McGlasson, to provide alleged hearsay testimony about the
inheritance that Mary Ann and her siblings received from their grandfather. "We
review the district court's evidentiary rulings for abuse of discretion." United States
v. King, 351 F.3d 859, 864 (8th Cir. 2003), cert. denied, 124 S. Ct. 2852 ( 2004). We
will reverse a conviction based on erroneous evidentiary rulings only if the error had
a substantial impact on the jury's verdict. United States v. Lupino, 301 F.3d 642, 645
(8th Cir. 2002).

       Mary Ann asserts that Ms. McGlasson's testimony was hearsay because the
grandfather's will was never probated, and under Illinois law, an unprobated will is
not valid evidence that title to property has passed hands, citing Krasauski v.
Birbalas, 197 N.E.2d 140, 142-43 (Ill. App. Ct. 1964). Mary Ann's counsel objected
to the government's attempt to introduce the will into evidence on the basis that it had
not been probated, and the government withdrew its offer of the will. The
government proceeded to question Ms. McGlasson about her knowledge about, and
dealings with, the Illinois land. After Mary Ann's objection concerning the will, the
government was careful not to ask Ms. McGlasson questions concerning information
contained in the will. Rather, she testified that she and her sisters took control of the
land immediately after their father's death, divided the profits among them, and that
each sibling paid one-third of the property taxes. Regardless of the legal effect of the
unprobated will, Ms. McGlasson had firsthand knowledge about how the property in

                                           10
question had been treated since 1988 and her testimony about it was not hearsay. The
district court did not err in admitting Ms. McGlasson's testimony.2

      3.     Reasonable Doubt Jury Instructions

       Finally, Mary Ann takes issue with the reasonable doubt jury instruction given
by the district court, arguing that the court failed to adequately instruct the jury that
the government had to prove each element of the offense beyond a reasonable doubt,
that the burden of proof remained with the government at all times and never shifts
to the defendant, and that a conviction cannot be based on speculation, passion,
prejudice, or sympathy. The district court rejected her proffered instruction, which
she claims would have better explained these legal principles to the jury. We review
the district court's refusal to give a specific instruction for an abuse of discretion.
United States v. Whitehead, 176 F.3d 1030, 1037 (8th Cir. 1999). We review the
instructions as given to ensure they properly conveyed the applicable law, and we will
reverse a conviction based on erroneous instructions only when the instructions, as
a whole, resulted in prejudice to the defendant. Id.

      The instructions given by the district court meet all of Mary Ann's objections.
Instruction number two told the jurors not to allow sympathy or prejudice to influence


      2
        During the sidebar conference concerning the admissibility of the will, Mary
Ann's counsel moved to strike Ms. McGlasson's prior testimony regarding
distribution of the property under her grandfather's will. We question whether the
objection preserved the issue, as Ms. McGlasson had already testified about the
contents of the will without objection. Counsel initially objected only to admission
of the will and did not object to Ms. McGlasson's testimony until well after it was
given. Even if the issue was preserved, we cannot say that any error in not striking
the prior testimony was prejudicial. Ms. McGlasson's nonhearsay testimony, coupled
with Mr. Dahman's testimony that he rented the land from Mary Ann, provided more
than sufficient evidence that Mary Ann had an interest in the Illinois farmland,
regardless of Ms. McGlasson's testimony about the contents of the unprobated will.
                                           11
them and that the verdicts were to be based on nothing other than the evidence, the
jurors' common sense, and the law (R. at 42); instruction number four told the jurors
that the burden of proof was on the government and there was no burden on either
defendant to prove anything (R. at 44); and instruction number five informed the
jurors that the defendants' presumption of innocence could be overcome only if the
government proved beyond a reasonable doubt each essential element of the crimes
charged (R. at 46). A defendant is not entitled to a particularly worded instruction as
long as the instructions as a whole convey the law to be applied. Whitehead, 176
F.3d at 1037. Because the instructions as given properly informed the jury of the law
to be applied to the case, the district court did not abuse its discretion in rejecting
Mary Ann's proffered instruction.

                                III. Sentencing Issues

        After the district court sentenced Alfred and Mary Ann, the Supreme Court
held unconstitutional a state sentencing scheme that allowed the sentencing court to
sentence a defendant based on facts not admitted by the defendant or found beyond
a reasonable doubt by a jury as a violation of the Sixth Amendment. Blakely, 124 S.
Ct. at 2536. Shortly thereafter, the Supreme Court extended its Sixth Amendment
Blakely holding to the United States Sentencing Guidelines. Booker, 125 S. Ct. at
756. All members of the Court agreed that but for the mandatory nature of the
Guidelines, fact-findings by the district court would not offend the Sixth Amendment.
Id. at 750 ("[E]veryone agrees that the constitutional issues presented by these cases
would have been avoided entirely if Congress had omitted from the [Sentencing
Reform Act] the provisions that make the Guidelines binding on district judges.").
To remedy the Sixth Amendment concern with the Guidelines, the Supreme Court
excised the portions of the Sentencing Reform Act that made the Guidelines
mandatory, leaving an advisory regime in its place. Id. at 764.




                                          12
       Following oral argument, Alfred and Mary Ann each filed supplemental papers
seeking a remand for resentencing, arguing that the district court violated the Sixth
Amendment by applying enhancements based on judge-found facts. Although neither
defendant challenged his or her sentence below, the Federal Rules of Criminal
Procedure allow us to review forfeited issues for plain error. See Fed. R. Crim. P.
52(b); United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc). To be
entitled to plain error relief under United States v. Olano, 507 U.S. 725, 732-36
(1993), "there must be (1) error, (2) that is plain, and (3) that affects substantial
rights." Pirani, 406 F.3d at 550 (internal marks omitted). Even if these conditions are
satisfied, we may exercise our discretion to notice the error only "if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial proceedings."
Id. (internal marks omitted).

       Mary Ann filed a supplemental brief shortly after the Supreme Court issued its
Blakely ruling, arguing that the Guidelines were unconstitutional and that the district
court's nine-level enhancement based on the $354,000 loss was not based on facts
found by the jury. She argued that the Guidelines were severable and sought a
remand for a sentence within the unenhanced sentencing range. Alternatively, Mary
Ann argued that if the Guidelines were unconstitutional as a whole, then she should
be resentenced within the statutory range of zero to five years. Alfred filed a pro se
"Motion to Supplement Authorities" pursuant to Federal Rule of Appellate Procedure
28(j) after the Supreme Court issued Booker, arguing that his "Sixth Amendment
right to a jury trial was violated because the judge–not a jury–determined the
application of several enhancement[s] and/or aggravating factors under the U.S.S.G.,
including the loss amount and other specific characteristics." He also claimed that
"the Supreme Court expressly stated [in Booker] that its conversion of the
[G]uidelines into an advisory scheme was to be applied 'to all cases on direct
review.'"




                                           13
       We construe each of the Ryders' supplemental filings to raise for the first time
a Sixth Amendment challenge to the district court's use of the enhancements based
on judge-found facts as well as a challenge to the mandatory application of the
Guidelines, necessitating plain error review. As more fully explained below, we hold
that Alfred and Mary Ann are each entitled to resentencing based on the district
court's mandatory application of the Guidelines. We therefore do not tarry on the
Sixth Amendment issues, other than to hold that the district court did not violate
either defendant's Sixth Amendment rights in making the relevant enhancements.
Each of the enhancements was based on facts that were either admitted by the
defendants or subsumed within the jury's verdicts. On remand then, the district court
should correctly apply the relevant Guidelines provisions in arriving at the proper
advisory sentencing range,3 and then should apply the other 18 U.S.C. § 3553(a)
factors in arriving at a reasonable sentence for each defendant. See United States v.
Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005).

       We grant Booker relief to the Ryders for the following reasons. The first two
prongs of the plain error analysis are met by the district court's mandatory application
of the Guidelines in sentencing the Ryders. See Pirani, 406 F.3d at 550 ("The district

      3
        We note that the district court sustained Alfred's objection to use of the 2002
Guidelines as contemplated in his Presentence Report (PSR) and instead sentenced
Alfred pursuant to the 2000 Guidelines. In so doing, it appears that the district court
erroneously pulled the enhancement level from the 2000 Guidelines and plugged it
into the calculation made in the PSR using the 2002 Guidelines. (Sent. Tr. at 84-85.)
When the district court determined to use the 2000 Guidelines manual, it was required
to use that version in its entirety. See USSG § 1B1.11(b) (Nov. 2000); United States
v. O'Hagan, 139 F.3d 641, 654 n.8 (8th Cir. 1998). The relevant Guidelines
provisions changed significantly between 2000 and 2002. Compare USSG § 2S1.1
(Nov. 2000) with USSG § 2S1.1 (Nov. 2002). Under our calculations using the 2000
Guidelines, Alfred's adjusted offense level would have been a level 21, the same
adjusted offense level arrived at by the district court, though reached by way of an
entirely different calculation. On remand, the district court should use the 2000
Guidelines manual in its entirety in determining Alfred's advisory Guidelines range.
                                          14
court (understandably) committed Booker error by applying the Guidelines as
mandatory, and the error is plain, that is, clear or obvious, at this time."). The third
prong is met if there is "a reasonable probability that [the defendant] would have
received a more favorable sentence with the Booker error eliminated by making the
Guidelines advisory." Id. at 551. A sentence at the bottom of a sentencing range in
itself is insufficient to establish a reasonable probability that a defendant would have
received a lesser sentence had the district court treated the Guidelines as advisory.
Id. at 553. Even a statement by the district court concerning its general dislike for the
Guidelines fails to meet the defendant's high burden. Id. at 552 (noting that proving
the third prong "should not be too easy" (internal marks omitted)), 553 n.6
(concluding that the district court's twice-expressed dislike for the Guidelines was
insufficient to meet the defendant's burden). We review the record on appeal as a
whole in making this determination. Id. at 552-53 (reviewing the whole record to
determine whether the third prong was satisfied where the defendant did not argue the
third prong in the terms ultimately required by the court).

       The record on appeal in this case contains much more than a bottom-of-the-
range sentence and a general dislike for the Guidelines. Indeed, the experienced
district judge expressed no generalized dislike of them. Alfred and Mary Ann each
sought a downward departure based on their ages and physical infirmities, relying on
USSG §§ 5H1.1 and 5H1.4. At the time of sentencing, Alfred and Mary Ann were
each over 70 years old and suffered from various medical conditions. With much
trepidation, the district court denied their request based on its determination that
neither of them met the Guideline definition of "seriously infirm," noting that it
"struggled rather extensively with the question of whether the defendants, or either
of them, are qualified for a downward departure." (Sent. Tr. at 83-84.) Before
handing down Alfred's and Mary Ann's sentences, the district court stated, "This is
a very sad case. . . . I wish that the sentencing laws of the United States, including
the guidelines, were more flexible to allow me greater discretion than what I have.
Within what limited discretion I have, it's my decision as follows[.]" (Id. at 93.) The

                                           15
court proceeded to sentence Alfred to 41 months of imprisonment, noting that it was
"the lowest sentence I can give you under the guidelines." (Id.) The court sentenced
Mary Ann to twelve months and one day, noting that "[i]n effect, I have given you the
shortest sentence I can." (Id. at 101.)

        These statements by the district court convince us that it is reasonably probable
that the district court would have given both Alfred and Mary Ann lesser sentences
if it were able to sentence unencumbered by the mandatory nature of their respective
Guidelines ranges. The district court clearly felt bound (as it legally was) by the
Guidelines ranges, expressing that it would have liked to have had more discretion
than it was allowed under the then-mandatory Guidelines. The district court's
statements were based on its concern with the sentences resulting from the individual
circumstances of the cases before him, not merely the inflexibility of the Guidelines
in general. See United States v. Plumman, 409 F.3d 919, 931 (8th Cir. 2005) (finding
the third prong met where the district court stated "I would not impose a life sentence
but for the sentencing guidelines. . . . I think that the sentencing guideline as it's
applied here is too harsh."); United States v. Rodriguez-Ceballos, 407 F.3d 937, 941
(8th Cir. 2005) (finding the third prong met where "the district court consistently
expressed its belief that the Guidelines range resulted in a disproportionate sentence"
for the defendant). Though the burden on the third prong should be and is high, we
believe it is met in this case.

      Having found the first three prongs of the plain error test satisfied, we must
now determine whether to exercise our discretion, which we can do only if the
Booker error in this case "would 'seriously affect[] the fairness, integrity, or public
reputation of judicial proceedings.'" Rodriguez-Ceballos, 407 F.3d at 942 (quoting
Johnson v. United States, 520 U.S. 461, 467 (1997)). Discretionary relief on the
fourth prong does not follow automatically from a finding of substantial prejudice
under the third prong. As we noted in Pirani, the actual sentence resulting from a
mandatory application of the Guidelines pre-Booker is not illegal, just the mandatory

                                           16
process by which the district court derived the sentence. The en banc court in Pirani
suggested that the fourth-factor inquiry in this type of Booker error case is more akin
to the analysis in "United States v. Cotton, where the Supreme Court refused to
exercise its discretion to review a plain Apprendi error . . . because '[t]he real threat
to the 'fairness, integrity, and public reputation of judicial proceedings' would be if
respondents, despite the overwhelming evidence that they were involved in a vast
drug conspiracy, were to receive a sentence prescribed for those committing less
substantial drug offenses because of an error that was never objected to at trial.'"
Pirani, 406 F.3d at 554 (quoting United States v. Cotton, 535 U.S. 625, 634 (2002))
(second alteration in original).

        The district court expressed its frustration with the Guideline-imposed
limitations on its sentencing discretion related to Alfred's and Mary Ann's health and
ages. Following Booker, district courts must now consider various factors listed in
18 U.S.C. § 3553(a) in addition to the still applicable but now advisory Guidelines
range. In addition to the advisory Guidelines range, the district court can consider
such things as "the history and characteristics of the defendant," § 3553(a)(1), and
"the need for the sentence imposed to provide the defendant with needed . . . medical
care . . . in the most effective manner," § 3553(a)(2)(D). Although age and physical
condition are still discouraged Guidelines departure factors, neither is prohibited for
purposes of granting a downward departure (as that term is used in the Guidelines),
and both, if present to the extent required, may properly support a departure in
reaching an advisory Guidelines sentence. See USSG §§ 5H1.1, 5H1.4. The prior
mandatory nature of the Guidelines deprived the district court of the opportunity to
consider age and physical condition in any manner other than as a basis for a
Guidelines departure. Now coupled with the requirements in § 3553(a) that a district
court consider a defendant's characteristics and the need to provide medical care in
the most effective manner when sentencing a defendant, the district court would be
well within its discretion to at least consider Alfred's and Mary Ann's ages and
medical conditions as non-Guideline factors on remand. We believe it "would

                                           17
'seriously affect[] the fairness, integrity, or public reputation of judicial proceedings'"
to not allow the district court to consider these factors now. See Rodriguez-Ceballos,
407 F.3d at 941-42 ("Given the state of this record, affirming [the defendant's]
sentence despite the district court's erroneous belief it was required to impose a
sentence which the district court clearly thought had a disproportionate impact on [the
defendant] would 'seriously affect the fairness, integrity, or public reputation of
judicial proceedings.'"); cf. United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.
2005) (remanding for resentencing where the district court felt bound by the
Guidelines to deny a motion for a downward departure based on the defendant's
advanced age and physical condition). Having found the fourth factor met, we
exercise our discretion and notice the district court's Booker error.

                                    IV. Conclusion

      We affirm Alfred Ryder's and Mary Ann Ryder's convictions, but we vacate
each of their sentences and remand to the district court for resentencing pursuant to
United States v. Booker.4 We express no opinion as to what a reasonable sentence
would be for either defendant, and nothing in this opinion should be construed as an
indication that we think a more lenient sentence is warranted.
                       ______________________________




      4
       Given Mary Ann's twelve-month-and-one-day sentence and her surrender date
of December 29, 2003, we understand that Mary Ann should have been released from
prison by now. The district court may still consider a new sentence for her, however,
as it may affect the timing of her present two-year term of supervised release.
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