                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3476
                                    ___________

United States of America,                *
                                         *
                    Appellee,            * Appeal from the United States
                                         * District Court for the Eastern
      v.                                 * District of Missouri.
                                         *
Clifford H. Blount, Jr.,                 *     [UNPUBLISHED]
                                         *
                    Appellant.           *
                                    ___________

                              Submitted: November 4, 2005
                                 Filed: November 9, 2005
                                  ___________

Before ARNOLD, FAGG, and SMITH, Circuit Judges.
                           ___________

PER CURIAM.


       A jury found Clifford H. Blount, Jr. guilty of being a felon in possession of a
firearm, and Blount appeals his conviction and the 188-month sentence imposed by
the district court. On appeal, counsel has filed a brief under Anders v. California, 386
U.S. 738 (1967), and moved to withdraw. Blount has filed a pro se supplemental
brief, arguing his sentence violates United States v. Booker, 125 S. Ct. 738 (2005),
and his counsel was ineffective. We affirm Blount’s conviction, but remand for
resentencing.
      The evidence at trial established Blount, who stipulated to having a prior felony
conviction, was arrested under an outstanding warrant during a routine safety
inspection of the commercial vehicle he was driving. A firearm was found in the
vehicle. After the jury verdict, Blount did not dispute the presentence report’s
enumeration of his three earlier burglary convictions and another conviction for
aggravated sexual battery, which resulted in a statutory prison term of 15 years (180
months) to life under 18 U.S.C. § 924(e)(1), an enhanced base offense level under
U.S.S.G. § 4B1.4(b)(3)(B), and a Guidelines imprisonment range of 188-235 months.
At the sentencing hearing, the district court sentenced Blount to 188 months
imprisonment and 3 years supervised release, but plainly stated it would have
imposed a more lenient prison term were it not for the mandatory nature of the
Guidelines.

       We reject counsel's contention that Blount was effectively denied his right to
testify. Blount advised the court he did not wish to testify after possible negative
consequences were explained to him, including potential perjury charges or an
obstruction-of-justice enhancement. Cf. Frey v. Schuetzle, 151 F.3d 893, 898-99 (8th
Cir. 1998) (affirming denial of right-to-testify claim where defendant consented to
advice not to testify). Blount also raises claims of ineffective assistance of counsel,
but these are not properly before us in this direct criminal appeal. See United States
v. Halter, 411 F.3d 949, 951 (8th Cir. 2005) (per curiam).

       The record, however, establishes plain Booker sentencing error. See United
States v. Pirani, 406 F.3d 543, 550, 553 (8th Cir. 2005) (en banc) (standard of review
where defendant did not raise appropriate objection in district court; applying four-
factor test of United States v. Olano, 507 U.S. 725, 732-36 (1993)), cert. denied, 74
U.S.L.W. 3210 (U.S. Oct. 3, 2005) (No. 05-5547). The Booker error is plain, see
Pirani, 406 F.3d at 550, 553 (“All sentences imposed by a district court that
mistakenly (though understandably) believed the Guidelines to be mandatory contain
Booker error.”), and the sentencing court’s statements establish a reasonable

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probability Blount would have received a more favorable sentence but for the court’s
treatment of the Guidelines as mandatory, see id. at 552. The district court explicitly
stated it would have given Blount a lower sentence if the court had not been
constrained by the Guidelines. Although the district court may be limited by the
statutory minimum, we grant discretionary relief, see United States v. Ryder, 414 F.3d
908, 919-20 (8th Cir. 2005), because there is room to impose a sentence of less than
188 months, and the district court plainly stated it preferred to do so.

       Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found, other than the Booker issue, no nonfrivolous issues
appropriate for direct review. Accordingly, we affirm Blount’s conviction, but vacate
his sentence and remand for resentencing. Counsel’s motion to withdraw is denied.
                         ______________________________




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