                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 04-2176
           ___________

United States of America,               *
                                        *
              Appellee,                 *
                                        *
      v.                                *
                                        *
Solomon L. Coffey, also known as        *
Solomon Murray, also known as Box,      *
                                        *
              Appellant.                *
           ___________
                                            Appeals from the United States
           No. 04-2247                      District Court for the
           ___________                      District of Nebraska.

United States of America,            *
                                     *
            Appellee,                *
                                     *
      v.                             *
                                     *
Solomon L. Coffey, also known as     *
Levell Coffey, also known as         *
Levell Murray,                       *
                                     *
            Appellant.               *
                                ___________

                             Submitted: June 22, 2005
                                Filed: July 25, 2005
                                 ___________
Before WOLLMAN, HEANEY, and FAGG, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

      Solomon L. Coffey appeals from the sentence imposed on him following his
conviction for conspiracy to distribute and possess with intent to distribute more than
50 grams of cocaine base, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1) and 846.
We affirm.

                                         I.
      The district court1 found by a preponderance of the evidence that Coffey was
responsible for 2.7 kilograms of crack cocaine. This finding increased Coffey’s
offense level from 32 (with a sentencing range of 168-210 months) to 38 (with a
sentencing range of 324-405 months). The district court sentenced him to 324
months’ imprisonment, a five-year term of supervised release, and a $100 special
assessment.2

      We affirmed Coffey’s conviction but remanded for resentencing after
concluding that his objection at sentencing to the sufficiency of the government’s
evidence of drug quantity was sufficient to preserve a constitutional claim that his
sentence violated United States v. Booker, 125 S. Ct. 738 (2005). See United States
v. Coffey, 395 F.3d 856 (8th Cir. 2005). Thereafter, our court granted the
government’s petition for rehearing en banc and vacated the opinion and judgment.

      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
      2
        The district court also sentenced Coffey to 30 months’ imprisonment for
violating the conditions of supervised release following the completion of his
sentence for an earlier conviction. We need not consider the thirty-month sentence
in our analysis because it runs concurrently with the longer sentence for the
conspiracy conviction.

                                         -2-
The en banc court has now remanded Coffey’s appeal to this panel for plain error
review of his sentencing challenge in the light of United States v. Pirani, 406 F.3d
543 (8th Cir. 2005) (en banc).3

                                              II.
       We conduct plain error review under the four-part test of United States v.
Olano, 507 U.S. 725 (1993). Pursuant to that test, before we can correct an error not
raised at trial, “there must be (1) error, (2) that is plain, and (3) that affects substantial
rights. Johnson v. United States, 520 U.S. 461, 466-67 (1997). If all three conditions
are met, we may remedy the error only if it “seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Id.

       The district court’s enhancement based on drug quantity was erroneous in light
of Booker because it was imposed on the basis of judge-found facts in a mandatory
guidelines regime. In these circumstances, the first two Olano factors are satisfied.
See Pirani, 406 F.3d at 550. Whether the error affected Coffey’s substantial rights is
another matter. To satisfy this factor, “the defendant must show a ‘reasonable
probability,’ based on the appellate record as a whole, that but for the error he would
have received a more favorable sentence.” Id. at 552. Although the district court
sentenced Coffey at the low end of the sentencing range, that is “the norm for many
judges” and “is insufficient, without more, to demonstrate a reasonable probability
that the court would have imposed a lesser sentence absent the Booker error.” Id. at
553. Coffey argues in his supplemental brief that his personal circumstances (which
he contends include parenthood, engagement, and efforts toward rehabilitation)
suggest that the district court would have imposed a lesser sentence. This argument
is unavailing, particularly given the absence of any discussion of Coffey’s personal



       3
       Pirani makes clear that Coffey’s objection to the sufficiency of the evidence
was insufficient to preserve a Booker claim. See Pirani, 406 F.3d at 550.

                                             -3-
circumstances by the district court. Accordingly, we conclude that Coffey has not
demonstrated prejudicial plain error.

      The judgment of conviction is reinstated and the sentence is affirmed.

HEANEY, Circuit Judge, concurring.

       I recognize we are bound by our circuit’s en banc decision in United States v.
Pirani, 406 F.3d 543 (8th Cir. 2005), and therefore concur in the majority’s opinion.
I write separately to underscore my view, as stated in my dissent in Pirani, that
Coffey’s sentencing objection was sufficient to preserve his Sixth Amendment
sentencing challenge. See Pirani, 406 F.3d at 555-62.

       The Pirani majority opined that only specific objections, those in which the
defendant explicitly mentions either the Sixth Amendment, Apprendi v. New Jersey,
530 U.S. 466 (2000), or Blakely v. Washington, 542 U.S. 296 (2004), preserve a
Booker4 claim for appellate review. Pirani, 406 F.3d at 549. Obviously, Coffey could
not have objected on the basis of Blakely; that decision was not issued at the time of
his sentencing. Thus, as I understand the Pirani majority, Coffey could only save his
Booker issue for appeal by asserting that the district court could not increase his
guidelines sentence due to drug quantities not proven to a jury beyond a reasonable
doubt, because Apprendi and/or the Sixth Amendment prohibited such action. But
soon after Apprendi was issued, our circuit was quick to “squarely reject[]” the view
that Apprendi rendered guideline enhancements based on judge-found facts
unconstitutional. United States v. Alvarez, 320 F.3d 765, 766-67 (8th Cir. 2002)
(citing United States v. Diaz, 296 F.3d 680 (8th Cir. 2002) (en banc)).




      4
       United States v. Booker, 125 S. Ct. 738 (2005).

                                         -4-
       In this case, Coffey objected to the district court increasing his mandatory
guidelines sentence on the basis of the evidence before it, asserting that it was
insufficient to establish any drug quantity. This is precisely what Justice Stevens’s
majority opinion in Booker found to be problematic with the guidelines: that it was
a system of mandatory sentencing in which a defendant’s sentence increased based
on evidence never proven to a constitutionally acceptable standard of proof. Booker,
125 S. Ct. at 756. Still, according to the Pirani majority and the en banc court which
returned Coffey’s case for plain error review, this type of objection is not enough.

       So Coffey challenged his mandatory guidelines sentence in district court for
essentially the same reason that the Booker court found the guidelines
unconstitutional, yet that objection was not specific enough to preserve his Booker
claim. Instead, the Pirani majority required Coffey to either cite a case–Blakely–that
was not yet law, or rely on Apprendi or the Sixth Amendment, which had been held
by our court en banc to have no application to the guidelines. Where could such an
absurd result stand? Justice Scalia might reply, “Only in Wonderland.” Booker, 125
S. Ct. at 793 (Scalia, J., dissenting).

      Coffey did everything reasonably necessary to preserve his Sixth Amendment
sentencing claim for our review. If not for our court’s decision in Pirani, I would
adhere to our initial panel determination on this issue and allow the district court the
opportunity to resentence Coffey under a constitutional sentencing regime.
                         _____________________________




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