                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 03-2688
      ___________

United States of America,              *
                                       *
            Plaintiff-Appellee,        *
                                       *
      v.                               *
                                       *
George Edward Dobbs,                   *
                                       *
           Defendant-Appellant.        *
      ___________
                                           Appeals from the United States
      No. 03-2762                          District Court for the
      ___________                          District of Minnesota.

United States of America,           *
                                    *
          Plaintiff-Appellee,       *
                                    *
    v.                              *
                                    *
Raymond Claude Leatham,             *
                                    *
          Defendant-Appellant.      *
                               ___________

                             Submitted: March 4, 2005
                                Filed: May 27, 2005
                                 ___________

Before LOKEN, Chief Judge, BRIGHT, and SMITH, Circuit Judges.
                              ___________
BRIGHT, Circuit Judge.

      This case is before us following the order of the Supreme Court remanding the
case to us for reconsideration in light of United States v. Booker, 125 S. Ct. 738
(2005).

       In our prior opinion1 we affirmed the judgment of the district court2 finding the
appellants, Leatham and Dobbs, guilty of mail fraud and sentencing each appellant
to be imprisoned for thirty-four months and to pay restitution. In that opinion, we
rejected appellants’ argument that the verdict was not supported by substantial
evidence. We again reject that argument, for the reasons stated in our prior opinion.

        We consider now the issues raised by the Supreme Court’s decision in Booker.
 The Supreme Court held in Booker, first, that a court violates the Sixth Amendment
when it makes a factual finding, other than as to the fact of a prior conviction, that
increases the statutorily prescribed maximum sentence the defendant may be given.
Id., at 749-50. The district court made no such findings in these cases, so there is no
constitutional violation here.

       The Supreme Court held in Booker, second, that the statutory provisions
purporting to make the sentencing guidelines mandatory are invalid. Id. at 759-60.
The guidelines thus are advisory. The district court sentenced both appellants under
the mandatory sentencing guidelines. The court thereby erred, though the error did
not violate the appellants’ Sixth Amendment rights. Because the appellants did not
object to the error, however, we review for plain error. United States v. Pirani, No.
03-2871, 2005 WL 1039976 (8th Cir. Apr. 29, 2005).

      1
       United States v. Dobbs, 105 Fed. Appx. 132 (8th Cir. 2004).
      2
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

                                          -2-
       We have held that sentencing error established under Booker does not warrant
relief under the plain error standard unless there is some affirmative indication in the
record – beyond a sentence at the bottom of the appropriate sentencing guideline
range – that the sentencing judge would have imposed a more lenient sentence if the
judge had understood the guidelines as advisory rather than mandatory. Pirani, 2005
WL 1039976 at *6-7. We have searched the record in these cases – including the
transcript of the sentencing hearings – and we find no such affirmative indication.
Under the Pirani plain error standard, therefore, we may not vacate the sentences and
remand for resentencing.3

      Accordingly, the judgments of the district court are affirmed.
                      ______________________________




      3
        As noted in Pirani, other federal appellate courts have adopted a less
restrictive view of plain error review under Booker than the rule established in this
circuit in Pirani. This panel is obligated to apply the Pirani rule unless and until the
Supreme Court resolves the conflicting rules of the circuits contrary to our approach.

                                          -3-
