United States v. Steven E. Smith

195 F. App'x 539

Opinion

PER CURIAM.

This case is before us on remand from the United States Supreme Court for re consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Steven E. Smith (Smith) appeals the 74-month sentence the district court 3 imposed following his guilty plea to credit card fraud, in violation of 18 U.S.C. § 1029(a)(5), (b)(1), and (c)(l)(A)(ii). For reversal, Smith argues the district court erred by sentencing him using the Sentencing Guidelines as mandatory in violation of Booker.

Because Smith never raised any Sixth Amendment issue or objected to the district court’s mandatory application of the Guidelines during sentencing, we review his sentence for plain error. See United States v. Pirani, 406 F.3d 543, 550 (8th Cir.) (en banc), cert. denied, — U.S. —, 126 S.Ct. 266, 163 L.Ed.2d 239 (2005). The district court (understandably) committed error by sentencing Smith under a mandatory Guidelines scheme. However, this error was not prejudicial because the record does not show any reasonable probability Smith would have received a more favorable sentence under an advisory Guidelines scheme.

After determining the applicable Guidelines range was 59 to 74 months, the district court imposed a sentence at the top of the Guidelines range. In doing so, the district court referred to the 74-month sentence as “the very top sentence that I can give under the [Guidelines] computations.” Smith cannot establish he would have received a more favorable sentence when the district court, sentencing him under a mandatory Guidelines scheme, did not use what discretion it had to sentence Smith to a lower term of imprisonment within the properly-calculated Guidelines range. See United States v. Davis, 442 F.3d 681, 684 (8th Cir.2006) (holding the defendant failed to demonstrate, for purposes of plain error review, that he would have received a more favorable sentence where the sentence imposed was at the top of the Guidelines range).

Because the district court’s statement and imposed sentence do not support a finding of prejudice, we conclude Smith has not demonstrated plain error warranting relief. Accordingly, we affirm.

3 . The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa.