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United States v. Gailyn Bass, 03-3578 (2006)

Court: Court of Appeals for the Eighth Circuit Number: 03-3578 Visitors: 28
Filed: Jan. 27, 2006
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 03-3578 _ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Gailyn Bass, * * [UNPUBLISHED] Appellant. * _ Submitted: March 3, 2005 Filed: January 27, 2006 _ Before BYE, McMILLIAN1, and RILEY, Circuit Judges. _ PER CURIAM. This case is before us on remand from the United States Supreme Court for further consideration in light of United States v. Booker, 543 U.S.
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                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3578
                                  ___________

United States of America,              *
                                       *
               Appellee,               *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Gailyn Bass,                           *
                                       * [UNPUBLISHED]
               Appellant.              *
                                  ___________

                             Submitted: March 3, 2005
                                Filed: January 27, 2006
                                 ___________

Before BYE, McMILLIAN1, and RILEY, Circuit Judges.
                             ___________

PER CURIAM.

      This case is before us on remand from the United States Supreme Court for
further consideration in light of United States v. Booker, 
543 U.S. 220
(2005).
"Booker held enhancements based upon judge-found facts under the mandatory
federal Sentencing Guidelines violate the Sixth Amendment. To remedy the problem,




      1
       The Honorable Theodore McMillian died on January 18, 2006. This opinion
is being filed by the remaining judges of the panel pursuant to Eighth Circuit Rule
47E.
the Supreme Court struck down the statutory provisions which made the Guidelines
mandatory, the effect of which was to 'make[ ] the Guidelines effectively advisory.'"
United States v. Turnbull, 
414 F.3d 942
, 943 (8th Cir. 2005) (quoting Booker, 543
U.S. at ___, 125 S.Ct. at 757)).

       In this case, Gailyn Bass's 210 month sentence was based in part upon judge-
found facts regarding the amount of cocaine attributed to him under United States
States Sentencing Guideline (U.S.S.G.) ยง 2D1.1. Bass, however, never brought a
Sixth Amendment challenge to this aspect of his sentencing, and thus we review any
Booker error for plain error only. See Fed. R. Crim. P. 52(b).

      Under plain error review, Bass must show a "reasonable probability that he
would have received a more favorable sentence with the Booker error eliminated by
making the Guidelines advisory." United States v. Pirani, 
406 F.3d 543
, 551 (8th Cir.
2005) (en banc). We have reviewed the record in this matter and conclude Bass
cannot show by a reasonable probability he would have received a more favorable
sentence under an advisory Guideline regime.

      Having found no plain error, we reaffirm Bass's judgment of conviction and
sentence in all respects.
                        ______________________________




                                         -2-

Source:  CourtListener

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