                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1366
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Ruth Kane,                              *
                                        *   [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: August 5, 2005
                                Filed: September 6, 2005
                                 ___________

Before COLLOTON, HANSEN, and BENTON, Circuit Judges.
                          ___________

PER CURIAM.

       Ruth Kane appeals the district court’s judgment entered upon a jury verdict
finding her guilty of aggravated sexual abuse, and conspiracy to commit aggravated
sexual abuse, for her role in accepting payment from and assisting Joseph Champion
to engage in sexual acts with her daughter, who was under twelve at the time. See 18
U.S.C. §§ 2241(c), 371, and 2. On appeal, Kane challenges the sufficiency of the
evidence, and seeks review of her 210-month sentence based on United States v.
Booker, 125 S. Ct. 738 (2005). We affirm Kane’s convictions, but remand to the
district court for resentencing in light of Booker.
        Kane’s convictions required proof that she crossed a state line with intent to
engage in a sexual act with a person who had not yet attained the age of twelve, or
that she aided or abetted another to do so, and that she conspired with another to
commit the offense. See 18 U.S.C. §§ 2241(c), 371, and 2. At trial, Kane’s daughter,
who formerly lived with Kane in Missouri, and Champion, who lived in Illinois,
testified in part that, pursuant to an agreement between Kane and Champion,
Champion on several occasions rubbed his penis against Kane’s daughter’s vagina
when she was nine or ten years old, at times while Kane held her. We conclude that
this evidence, viewed in the light most favorable to the government, overwhelmingly
supports the verdict. See 18 U.S.C. § 2246(2)(A), (D); United States v. Kenyon, 397
F.3d 1071, 1076-77 (8th Cir. 2005); United States v. Eagle, 137 F.3d 1011, 1013-14
(8th Cir. 1998). In addition, we find no merit to Kane’s contention--not raised below
and reviewable only for plain error, see United States v. Woodard, 315 F.3d 1000,
1004 (8th Cir. 2003)--that instructing the jury that it could convict her for
Champion’s intentional touching of the victim’s unclothed genitalia resulted in a
constructive amendment to the indictment. See United States v. Barrios-Perez, 317
F.3d 777, 779-80 (8th Cir. 2003).

       Turning to Kane’s Booker challenge to her sentence, Kane did not raise an
appropriate objection below, so this court reviews for plain error; in other words,
there must be (1) error, (2) that is plain, and (3) that affects substantial rights, and, if
all three conditions are met, this court may remedy the error only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
See United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc). The Booker
error is plain, see id. at 553 (“All sentences imposed by a district court that
mistakenly (though understandably) believed the Guidelines to be mandatory contain
Booker error.”), but to satisfy the third factor Kane must show a reasonable
probability based on the record as a whole that she would have received a more
favorable sentence but for the treatment of the Guidelines as mandatory, see id. at
552.

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       Although the district court did not explicitly say it preferred to give Kane a
lower sentence, cf. United States v. Plumman, 409 F.3d 919, 931-32 (8th Cir. 2005)
(finding plain error and remanding where sentencing court expressed belief that life
sentence was too severe; district court said it would have departed downward if it
could have without being reversed on appeal), the court expressed concern about
factors not relevant under the then-mandatory Guidelines. Specifically, the court
believed Kane’s use of alcohol and drugs made her susceptible to Champion’s
influence, but observed that Kane’s sentence under the Guidelines was not subject to
the court’s individual judgment. See United States v. Ryder, 414 F.3d 908, 918-20
(8th Cir. 2005) (remanding where district court described case as “sad” and
complained of its lack of discretion to sentence elderly defendants to term below
Guidelines range because their medical conditions were not serious enough to warrant
departure under Guidelines language). The district court also believed that Kane was
less culpable and presented less of a threat to society than Champion, who was
sentenced by the court to 180 months imprisonment. See United States v. Aldridge,
413 F.3d 829, 835-36 (8th Cir. 2005) (remanding where district court expressed belief
that defendant was inappropriately sentenced to longer prison term than his more
culpable uncle). When combined with the court’s grant of a criminal-history
downward departure, and its imposition of a sentence at the bottom of the Guidelines
range, we conclude these statements give rise to a reasonable probability that the
court would have sentenced Kane more favorably under an advisory Guidelines
regime. See United States v. Rodriguez-Ceballos, 407 F.3d 937, 941-42 (8th Cir.
2005) (where district court nearly apologized to defendant for sentence it believed it
was required to impose under Guidelines, reviewing court felt confident that
reasonable probability existed that sentencing court would have exercised its
discretion by imposing more favorable sentence under advisory Guidelines).

      Our conclusion that the Booker error affected Kane's substantial rights is not
the end of the plain error analysis. We next decide whether to exercise our discretion
to remedy the error by considering whether the error "'seriously affects the fairness,

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integrity, or public reputation of judicial proceedings.'" Pirani, 406 F.3d at 550
(quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)). In this case, not
only is there a reasonable probability that the district court would have imposed a
more lenient sentence, see United States v. Betterton, No. 04-2151, 2005 WL
1802464, slip. op. at 9 (8th Cir. Aug. 2, 2005), but the record also reveals the
existence of facts, discussed above, that could form "a basis within the 18 U.S.C.
§ 3553(a) factors for the district court to impose a lower but still reasonable sentence
under advisory Guidelines," id. slip op. at 13 (Hansen, J., concurring). See United
States v. Whipple, 414 F.3d 887, 891 (8th Cir. 2005) (concluding the fourth element
of plain error was satisfied where there was a reasonable probability that the district
court might have imposed a more lenient sentence after considering the Guidelines
as advisory and applying the other considerations set forth in § 3553(a)).

      Accordingly, we affirm Kane’s convictions, but we vacate her sentence and
remand to the district court for resentencing pursuant to Booker. We express no
opinion as to what a reasonable sentence would be, and nothing in this opinion should
be construed as an indication that we think a more lenient sentence is warranted.
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