United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3319
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
Robert E. Watkins, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 21, 2005
Filed: July 13, 2005
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Before MELLOY, LAY, and COLLOTON, Circuit Judges.
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PER CURIAM.
This case is before the court on remand from the Supreme Court for further
consideration in light of United States v. Booker, 125 S. Ct. 738 (2005). In an
opinion filed on October 28, 2004, we rejected numerous arguments raised by
Watkins regarding his conviction and sentence for unlawful possession of a firearm
as a previously convicted felon. With respect to all matters other than further
consideration of Watkins’s sentence in light of Booker, we adhere to our prior
opinion. See United States v. Watkins, 2004 WL 2402604 (8th Cir. 2004)
(unpublished).
Watkins’s sentence did not involve a violation of the Sixth Amendment as
interpreted in Booker, because the district court determined the applicable sentencing
guideline range based on facts proved to a jury beyond a reasonable doubt and on the
facts of Watkins’s prior convictions. See Booker, 125 S. Ct. at 756; United States v.
Marcussen, 403 F.3d 982, 984 (8th Cir. 2005). The district court’s imposition of
sentence pursuant to the mandatory sentencing guidelines, however, does constitute
error under the remedial holding of Booker that the guidelines are effectively advisory
in all cases.
Because Watkins raised no objection in the district court based on the Sixth
Amendment or the mandatory nature of the guidelines, we review his sentence under
the plain-error standard. United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir.
2005). Under that standard, resentencing is warranted only if the record establishes
a reasonable probability that the district court would have imposed a more favorable
sentence under the advisory guideline system announced in Booker. Id. at 552.
After careful review of the record, we conclude that it does not meet the
requisite standard for relief on plain-error review. The district court sentenced
Watkins at the low end of the applicable guideline sentencing range of 210 to 262
months’ imprisonment, but a sentence at the bottom of the range is insufficient,
without more, to establish a reasonable probability of a more favorable sentence
under the advisory system. Id. at 553. Watkins was sentenced as an armed career
criminal, and his record includes a serious criminal history ranging from 1979 to
1997, including, among others, convictions for manslaughter, burglary (twice),
assault and battery (thrice), attempted first degree assault, and possession of a weapon
by a felon. In imposing sentence, the district court explained:
I have sentenced you within the guideline range. The range does exceed
24 months. I’ve nevertheless selected a sentence at the low end of the
guideline range. Although you didn’t accept responsibility for the crime
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of which you are convicted, you didn’t impede or obstruct justice, but
the sentence at the low end of the guideline, in my belief anyway, does
sufficiently punish you and at the same time obtain the goals expressed
by the Sentencing Commission. So those are the reasons for my
sentence.
We see nothing in the district court’s comments or the record as a whole that
provides any basis other than speculation to conclude that a more favorable sentence
would have been imposed under the advisory guideline system. Where the effect of
the erroneous application of mandatory guidelines on the result in the district court
is “uncertain or indeterminate – where we would have to speculate,” the record does
not establish that the error affected the defendant’s substantial rights. Id.
Accordingly, the judgment of the district court is affirmed. Appellant’s pro se
motion to remand the case to the district court is denied.
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