                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3906
                                   ___________

United States of America,               *
                                        *
               Appellee,                *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Lisa Brandt,                            *
                                        *
               Appellant.               *
                                   ___________

                             Submitted: June 21, 2005
                                Filed: August 19, 2005
                                 ___________

Before RILEY, BOWMAN, and BENTON, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

       Lisa Brandt, now known as Lisa Vinton, appeals from the sentence imposed
by the District Court1 after she pleaded guilty to making a false material declaration
before the federal grand jury (i.e., perjury). See 18 U.S.C. § 1623(a) (2000). We
affirm.

      Brandt appeared before a federal grand jury and gave false testimony in the
government's presentation of evidence regarding a conspiracy to distribute

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
methamphetamine. Her false testimony concerned her actions at the behest of the
conspiracy's ring leader, Vincent Deherrerea, in removing a half-pound package of
methamphetamine from Deherrerea's home. Brandt told the grand jury she had
removed the package at the request of Deherrerea's wife rather than at the request of
Deherrerea, apparently in an attempt to minimize Deherrerea's role in her actions.
After Brandt was charged with perjury and pleaded guilty, the District Court
calculated a guidelines sentencing range of forty-one to fifty-one months. This
calculation required the cross-referencing of provisions regarding Brandt's perjury
offense with provisions regarding the offense of conspiracy to distribute
methamphetamine. See U.S. Sentencing Guidelines Manual §§ 2J1.3, 2X3.1 (2003).
The District Court then sentenced Brandt to the high end of the range, fifty-one
months.

       Brandt first claims the cross-referencing of provisions and the fact-finding
involved in calculating her guidelines sentencing range violated the Sixth
Amendment under the Supreme Court's holding in Blakely v. Washington, 542 U.S.
296 (2004) (holding that the Washington state sentencing regime violated the Sixth
Amendment by permitting the use of judge-found facts to increase a defendant's
sentence beyond the range authorized by facts admitted by the defendant or reflected
by a jury's verdict). Because Brandt first raised her Blakely claim in the District
Court, she preserved her claim for review on appeal and we construe it as a challenge
to her sentence under the Supreme Court's decision in United States v. Booker, 125
S. Ct. 738, 755 (2005) (extending the logic of Blakely to the United States Sentencing
Guidelines); see United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc)
(stating that a Blakely claim made in the district court preserves a Booker claim for
review on appeal). We need not decide whether the District Court's application of the
guidelines violated Brandt's rights under the Sixth Amendment or amounted only to
Booker error not implicating the Sixth Amendment, because either way the
preservation of her claim for review on appeal triggers our review for harmless error.
See United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir. 2005) ("We, of course,

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will follow our circuit precedent and apply harmless error review to both types of
Booker error."); United States v. Bassett, 406 F.3d 526, 527 (8th Cir. 2005) (per
curiam) (reviewing for harmless error a preserved Booker challenge to a sentence
based on enhancements that violated the Sixth Amendment).

       Anticipating the Supreme Court's subsequent decision in Booker, the District
Court announced an alternative and identical sentence of fifty-one months based on
the court's consideration of the sentencing factors set forth in 18 U.S.C.
§ 3553(a)(1)–(7) (2000). The alternative sentence was to be imposed if the guidelines
were held unconstitutional "as a whole or in relation to the Court's application of the
Sentencing Guidelines in this case." Sent. Tr. at 28. The District Court obviously
considered the guidelines in fashioning the alternative sentence, as federal courts
must in sentencing convicted defendants post-Booker, see 125 S. Ct. at 757. Thus,
any Booker error that occurred "did not affect the ultimate sentence and was harmless
beyond a reasonable doubt." Bassett, 406 F.3d at 527. Further, the District Court
correctly applied the guidelines, and the sentence imposed is reasonable in light of
the statutory sentencing factors on which it is based.

       Brandt next challenges the District Court's denial of a sentencing reduction for
acceptance of responsibility. See U.S. Sentencing Guidelines Manual § 3E1.1 (2003).
We review the District Court's decision regarding a § 3E1.1 reduction for clear error,
giving that decision great deference. United States v. Bell, 411 F.3d 960, 963 (8th
Cir. 2005) (quoting U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.5 (2003)).
A consideration for the District Court in determining whether to grant the reduction
was whether Brandt made a "voluntary termination or withdrawal from criminal
conduct." U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.1(b) (2003). Brandt
committed several violations of her conditions of presentencing release, including
two failed drug tests, and when placed in jail as a result of those violations, she was
found to be in possession of marijuana. When questioned under oath about the
marijuana at sentencing, Brandt gave testimony the District Court found was

                                         -3-
untruthful, thus again manifesting the same sort of conduct as the conduct to which
she had pleaded guilty. In these circumstances, it was not clear error for the District
Court to deny Brandt a sentencing reduction for acceptance of responsibility.

      We affirm.
                       ______________________________




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