United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3392
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Jeffrey Allen Devono,                   *
                                        * [PUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: June 20, 2005
                                Filed: July 8, 2005
                                 ___________

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

PER CURIAM.

     Jeffrey Allen Devono appeals his sentence. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.

       Devono pleaded guilty to receiving child pornography and possession of child
pornography. See 18 U.S.C. § 2252(a)(2), (a)(4). The district court1 applied a two-
level enhancement for simple distribution, for a sentencing range of 33 to 41 months.
See U.S.S.G. § 2G2.2(b)(2)(E) (2002). Devono objected based on Blakely v.

      1
       The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
Washington, 

(2004), arguing for a range of 27 to 33 months. The
court imposed a 40-month sentence. In his brief to this court, Devono argues the
sentencing enhancement violates the Sixth Amendment because the evidence of
distribution was not proved to a jury beyond a reasonable doubt. While this appeal
was pending, the Supreme Court decided United States v. Booker, 

(2005).

      This court first addresses the distribution enhancement. Under Booker: "Any
fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt." 

A fact in the presentence report not specifically
objected to is admitted for purposes of Booker. United States v. McCully, 

, 933 (8th Cir. 2005).

       Devono did not object to the presentence-report statement that he "admitted
transmitting both adult and child pornography to other users through his chat room
encounters." At sentencing, defense counsel states, "We didn't object to the factual
basis in the Presentence Report because frankly we believed that the facts are true that
are set forth in there." Later, counsel says, "I submit there was some [child
pornography] and he distributed and he has admitted that . . . ." The district court
notes that Devono "clearly acknowledges distribution." Counsel replies, "Judge, I
think that clearly there is distribution, but that is part of the crime." Because Devono
admits the facts supporting the enhancement, there is no Sixth Amendment violation.
See 

district courts are not bound by the guidelines, but must consult
and consider them when sentencing. 

, 767. Sentences
imposed by a district court applying the guidelines as mandatory contain Booker
error. United States v. Pirani, 

, 550, 553 (8th Cir. 2005) (en banc). In

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this case, however, the district court presciently did not believe the guidelines to be
mandatory. Predicting Booker, the judge states at sentencing:

            . . . we have a Blakely issue in that it has been my ruling that the
      Guidelines cannot be applied as mandatory, but should be applied as
      advisory and, therefore, I am free to go somewhat beyond the sentencing
      range that is recommended, either up or down.

      In sum, the district court determined the correct guidelines range, and consulted
the advisory guidelines. It then imposed a reasonable sentence within the range. See
United States v. Marcussen, 

, 985 & n.4 (8th Cir. 2005). There is no
Booker error.

      This court affirms the sentence of Jeffrey Allen Devono.
                       _____________________________




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