UNITED STATES of America, Plaintiff-Appellee, v. Louis F. PIRANI, Defendant-Appellant, 406 F.3d 543

LOKEN, Chief Judge. In this case, we apply the Supreme Court’s recent decision in United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to a sentencing error that defendant Louis F. Pirani failed to preserve in the district court.

Having carefully considered the divergent analyses of our sister circuits, we follow decisions of the First, Fifth, and Eleventh circuits in holding that a remand for resentencing is not required unless the defendant meets his burden to demonstrate plain error prejudice under controlling Supreme Court precedents, that is, a “reasonable probability” that, the district court would have imposed a more favorable sentence under, the advisory sentencing guidelines regime mandated by Booker. As Pirani has not met that burden, we affirm. I.

Background During a federal investigation into allegations that Crittenden County deputy sheriffs were stealing money seized at drug interdiction points, FBI' and IRS agents interviewed former deputy Louis F. Pirani. Pirani denied an ownership interest in a ski boat and an airplane, assets the investigators doubted he could afford based on his legitimate sources of income. When the investigation uncovered doeu-mentary evidence that Pirani had an interest in both crafts, he was charged with two counts of making materially false statements to federal investigators in violation of 18 U.S.C. § 1001(a).

After a trial, the jury convicted him of both counts. At sentencing, the district court applied the then-mandatory United States Sentencing Guidelines, using the November 1, 2000, Guidelines in effect when Pira-ni’s offenses were committed. Pirani argued that his total offense level should be 6, the base offense level under U.S.S.G. § 2F1.1 (2000), which governed most § 1001 fraud convictions.

The court found, however, that upward, adjustments for the amount of loss ($114,000), more than minimal planning, and obstruction of justice would increase the total offense level under § 2F1.1 to 16, producing a guidelines sentencing range of 21 to 27 months in prison, a range the court considered “too high” for Pirani’s offenses. The court further found that “defendant’s conduct as established at trial, which consisted of giving false statements to agents of the FBI and IRS knowing that they were conducting an investigation,” established a violation of 18 U.S.C. § 1505.

Application note 14 to § 2F1.1 stated, “Where the indictment or information setting forth the count of conviction ... establishes an offense more aptly covered by another guideline, apply that guideline rather than § 2F1.1.” The court invoked this cross reference and assessed Pirani a total offense level of 12 under U.S.S.G. '§ 2J1.2 (2000), the obstruction of justice provision governing violations of 18 U.S.C. § 1505. That produced a guidelines sentencing range of 10 to 16 months in prison. The court imposed a ten-month sentence and “split” the sentence into five months in prison and five months home detention.

See U.S.S.G. § 5C1.1 (2000). Pirani appealed his conviction and sentence, arguing the district court committed evidentiary errors at trial and erred in applying § 2J1.2 to determine his offense level under the mandatory Guidelines. After oral argument to a panel of this court, the Supreme Court issued its decision in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Pirani moved to remand his case for re-sentencing, arguing that the district court violated his Sixth Amendment rights under Blakely by finding that his conduct as charged and proved at trial satisfied the elements of obstruction of justice. The panel affirmed Pirani’s conviction but concluded that use of the § 2F1.1 cross-reference violated his Sixth Amendment right to trial by jury and was plain error requiring a remand for resentencing. The en banc court vacated the panel’s opinion and granted rehearing en banc.

After the Supreme Court issued its decision in Booker, we requested supplemental briefing on the issue “whether the district court committed sentencing error in light of [Booker], and if so, whether it is plain error warranting relief under ... United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).” II.

Sentencing Issues In Booker, the Supreme Court applied the core Sixth Amendment principle of Blakely to enhancements imposed under the mandatory federal Sentencing Guidelines — “[a]ny 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.” 125 S.Ct. at 756.

Then, invoking its power to sever provisions that render a statute unconstitutional, the Court “severed and excised” two provisions of the Sentencing Reform Act of 1984: 18 U.S.C. § 3553(b)(1), the provision that made the Guidelines mandatory; and 18 U.S.C. § 3742(e), the provision establishing standards of appellate review which, as revised in 2003, “make Guidelines sentencing even more mandatory than it had been.” 125 S.Ct. at 765.

The effect of this remedy (assuming no responsive legislation by Congress) is an advisory Guidelines system in which sentencing judges continue to “take account of the Guidelines together with [the] other sentencing goals” enumerated in 18 U.S.C. § 3553(a), and courts of appeal review sentences for “unreasonableness.” 125 S.Ct. at 764-66. The advisory Guidelines mandated by Booker apply to all federal sentencings, whether or not the defendant is subject to one of the enhancements that triggered the Sixth Amendment issues that invalidated the mandatory Guidelines regime.

The Court in Booker confirmed that this profound change in federal sentencing applies to all cases now on direct appeal. In determining how these diverse cases should be resolved, the Court provided significant guidance to the courts of appeals: [The fact that this new rule applies to cases pending on direct review] does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing.

That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the “plain-error” test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review, a sentence for unreasonableness may depend upon application of the harmless-error doctrine. 125 S.Ct. at 769.

Before turning to the question of plain error, we must consider two preliminary issues raised by Pirani— whether the district court misapplied the then-mandatory Guidelines, an issue that is still important because the statute as excised by Booker “requires judges to take account of the Guidelines together with other sentencing goals,” 125 S.Ct. at 764; and whether Pirani preserved the issue of Booker error in the district court, so that the plain error doctrine does not apply. A.

Pirani argues that the district court misapplied the cross reference in U.S.S.G. § 2F1.1(2000) because, while his conduct as proved at trial might have constituted a violation of 18 U.S.C. § 1505, the indictment did not establish that his offense was more aptly covered by U.S.S.G. § 2J1.2, as application note 14 required. Like the district court, we disagree. The two counts in question did not expressly allege obstruction of justice or a violation of § 1505.

But the facts alleged, including those incorporated from a prior count, charged Pirani with making false statements to FBI and IRS agents during the course of a government investigation at a time when Pirani, himself in' law enforcement, knew of the investigation. In these circumstances, the district court did not clearly err in finding that the indicthient established an offense more aptly covered by another guideline, invoking the cross reference in § 2F1.1, and sentencing Pirani in accordance with § 2J1.2. Accord United States v. Kurtz, 237 F.3d 154 (2d Cir.2001). B.

An error by the trial court, even one affecting a constitutional right, is forfeited — that is, not preserved for appeal— “by the failure to make timely assertion of the right.” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To preserve an error for appellate review, an objection must be timely and must “clearly stat[e] the grounds for the objection.” United States v. Williams, 994 F.2d 1287, 1294 (8th Cir.1993); Fed. R.Crim.P. 51(b). Errors not properly preserved are reviewed only for plain error under Rule 52(

b) of the Federal Rules of Criminal Procedure, as construed in' Olano and its progeny. The plain error principle applies even when, as here, the error results from ’ a change in the law that occurred while the case was pending on appeal. See Johnson v. United States, 520 U.S. 461, 467-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

Pirani argues that the plain error doctrine does not apply in this case because he preserved his Booker claim when h'e “raised numerous legal and factual objections in the district court to the Presen-tence Report, challenging the proposed application of various sentencing enhancements, including the cross reference.” However, these objections did not allege Booker errors. Booker changed the legal significance of a Guidelines enhancement — from mandatory to advisory — not whether the facts of a particular case make the enhancement applicable.

In this regard, we agree with the First Circuit: “The argument that a Booker error occurred is preserved if the defendant below argued Apprendi or Blakely error or that the Guidelines were unconstitutional.” United States v. Antonakopoulos, 399 F.3d at 76; see United States v. Sayre, 400 F.3d.599, 602 (8th Cir.2005) (Gruender, J., concurring). In United States v.

Coffey, 395 F.3d 856, 860-61 (8th Cir.2005), reh’g en banc granted, Nos. 04-2176/2247 (Apr. 1, 2005), a panel of this court held that an objection at sentencing to the sufficiency of the government’s evidence of drug quantity was sufficient to preserve a claim of Booker error on appeal. Other panels have followed this ruling. See United States v. Selwyn, 398 F.3d 1064, 1066-67 (8th Cir.2005); United States v. Sdoulam, 398 F.3d 981, 995 (8th Cir.2005); United States v. Fox, 396 F.3d 1018, 1026-27 (8th Cir.2005).

These decisions are contrary to this court’s unanimous en banc decision that a sufficiency-of-proof objection did not preserve a claim of Apprendi error. United States v. Diaz, 296 F.3d 680, 683 n. 4 (8th Cir.2002). To the extent these decisions are inconsistent with this opinion, they are not controlling precedent.

Pirani further argues that he preserved his claim of Booker error at sentencing when his attorney stated, in arguing that the court should not impose a two-level enhancement for more than minimal planning, “when you talk about sending people to prison, I believe the burden of proof should be beyond a reasonable doubt.” Many defendants have urged courts to adopt this strict standard of proof in applying the mandatory Guidelines.

Because Pirani did not couple this statement with a specific reference to Apprendi or Blakely or the Sixth Amendment, he did not preserve the very different question of whether the district court committed Booker error in construing the Guidelines as mandatory when invoking the cross-reference to § 2J1.2. Thus, we review this question for plain error. C.

Plain error review is governed by the four-part test of Olano, 507 U.S. at 732-36, 113 S.Ct. 1770, as articulated in Johnson, 520 U.S. at 466-67, 117 S.Ct. 1544: before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The defendant has the burden of proving plain error, whereas the government has the burden of proving harmless error. Olano, 507 U.S. at 734-35, 113 S.Ct. 1770. “Appellate review under the plain-error doctrine, of course, is circumscribed and we exercise our power under Rule 52(

b) sparingly.” Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). It is undisputed that the first two Olano factors are satisfied here. The district court (understandably) committed Booker error by applying the Guidelines as mandatory, and the error is plain, that is, clear or obvious, at this time. “[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal—it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson, 520 U.S. at 468, 117 S.Ct. 1544.

The crux of the inter-circuit conflict comes in the application of the third and fourth Olano factors—whether the Booker error affected the defendant’s “substantial rights” in a manner that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” 1. The Fourth Circuit in a thorough opinion concluded that all pending appeals in which the district court committed Sixth Amendment error by imposing- a mandatory, judge-found guidelines enhancement must be remanded because of plain Booker error. United States v. Hughes, 401 F.3d 540 (4th Cir.2005).

Noting that “the proper focus” of the plain error prejudice inquiry is on what happened at the original sentencing proceeding, not what might happen on remand, the court criticized contrary decisions in other circuits for considering the remedy mandated in Booker because that approach “would essentially require us to disregard the Sixth Amendment error altogether.” Id. at 551.

Having defined the Booker error in this fashion, the court concluded that the defendant’s rights were substantially affected if an enhancement increased the mandatory Guidelines sentence, and that satisfied the fourth Olano factor because the defendant was sentenced to a longer prison term than “the maximum sentence authorized by the jury verdict.” Id. at 555. The Sixth Circuit and the Ninth Circuit have adopted similar approaches to the plain error issue. See United States v. Oliver, 397 F.3d 369, 379-80 (6th Cir.2005); United States v.

Ameline, 400 F.3d 646, 654 (9th Cir.2005), reh’g en banc granted, 401 F.3d 1007 (9th Cir.2005). Like most other circuits, we .disagree with the Fourth Circuit’s definition of the plain- error at issue. The error in Booker was not merely the enhancement of a sentence on the basis of judge-found facts. The constitutional error arose from the combination of the enhancement and a mandatory Guidelines regime.

In Booker, every Justice agreed that the Sixth Amendment would not be implicated “if the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts.” 125 S.Ct. at 750 (Stevens, J., for the Court); accord 125 S.Ct. at 764 (Breyer, J., for the Court). In deciding whether a defendant has satisfied the. third Olano factor, we agree with the Fourth Circuit that the prejudice inquiry focuses on what sentence would have been imposed absent the error.

But the error as defined in Booker can be excised in two different ways, either by limiting enhancements in a mandatory guidelines regime to those consistent with the jury verdict, or by retaining enhancements based upon judge-found facts but applying them in an advisory guidelines regime. If the Court in Booker had not excised portions of the Sentencing Reform Act, the latter option would not be available.

But the Court did modify the statute, meaning that the district court could have avoided Booker error by declaring the Guidelines advisory (contrary to the plain meaning of the statute at that time), determining the guidelines sentencing range in the manner we have now upheld, and then imposing a “reasonable” sentence.

In these circumstances, we agree with the First, Second, Fifth, Seventh, and Eleventh Circuits that the third Olano factor turns on whether Pirani has demonstrated a reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory. As Judge Posner explained in United States v.

Paladino, “what [Hughes] overlooked is that if the judge would have imposed the same sentence even if he had thought the guidelines merely advisory (in which event there would have been no Sixth Amendment violation), and the sentence would be lawful under the post-Booker regime, there is no prejudice to the defendant.” 401 F.3d 471, 483 (7th Cir.2005).

The Second Circuit has modified the prescribed plain error inquiry by remanding Booker plain error cases to the district courts to “consider, based on the circumstances at the time of the original sentence, whether to resentence, after considering the currently applicable statutory requirements as explicated in Booker.” United States v. Crosby, 397 F.3d 103, 120 (2d Cir.2005).

The Seventh Circuit has adopted this approach, except that it retains jurisdiction until the district court “states on limited remand [whether] he would have imposed a different sentence had he known the guidelines were merely advisory.” Paladino, 401 F.3d at 484. Though creative, we conclude that this approach violates the Supreme Court’s command in Booker that courts of appeals apply “ordinary prudential doctrines,” including “the ‘plain-error’ test.” 125 S.Ct. at 769 (emphasis added).

Four times in recent years, a unanimous or nearly unanimous Supreme Court has applied the plain error test of Olano and concluded that an unpreserved error would not be reviewed because it either did not affect substantial rights or did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. United States v. Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (Apprendi error); United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); Johnson v.

United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The Court has repeatedly said that the “plain-error review is in the discretion of the reviewing court.” Vonn, 535 U.S. at 63, 122 S.Ct. 1043. In addition to violating this principle, delegating the plain error prejudice question to the district courts is contrary to the intent of Congress to reduce sentencing disparity by expanding appellate review.

Thus, like the Fifth Circuit and the Eleventh Circuit, we reject the limited remand approach as contrary to our obligation as an appellate court to apply the third and fourth Olano factors based upon the existing record on appeal. See Mares, 402 F.3d at 522; Rodriguez, 398 F.3d at 1304-06. The Supreme Court has instructed that proving plain error prejudice “should not be too easy” and “demand[s] strenuous exertion to get relief.” Benitez, 124 S.Ct. at 2340.

Accordingly, like the First, Fifth, and Eleventh circuits, we hold that, before we may consider whether to exercise our discretion under the fourth Olano factor to review a forfeited Booker error, the defendant must show a “reasonable probability,” based on the appellate record as a whole, that but for the error he would have received a more favorable sentence. 2. In addressing the third Olano factor, Pirani’s supplemental brief and the amicus briefs submitted in his support simply argue that all cases in which the Booker error included a Sixth Amendment violation should be remanded under plain error review.

We reject that contention because it misperceives the nature of Booker error. All sentences imposed by a district court that mistakenly (though understandably) believed the Guidelines to be mandatory contain Booker error. Whether the resulting sentence included what Pirani calls a Sixth Amendment violation, that is, an enhancement based upon judge-found facts, may affect the plain'error prejudice inquiry. But it does not, by itself, establish a reasonable probability that, but for Booker error, the defendant would have received a more favorable sentence under an advisory guidelines regime.

That question is inherently more fact specific. See Antonakopoulos, 399 F.3d at 80-81. Pirani’s brief does not arg-ue that the district court would have imposed a more favorable sentence under the advisory guidelines regime mandated by Booker. In any event, the record on appeal would not support this contention. The sentence imposed was at the bottom of the obstruction-of-justice guidelines range.

But sentencing at the bottom of the range is the norm for many judges, so it i's insufficient, without more, to demonstrate a reasonable probability that the court' would have imposed a lesser sentence absent the Booker error.

Here, the district court applied the cross-reference to U.S.S.G. § 2J1.2, which avoided § 2F1.1 enhancements that would have produced a mandatory guidelines sentence the court considered “too high.” The court then exercised its discretion to impose the minimum sentence, noting that “[t]here were factors that weighed against imposing the minimum sentence, but the Court believes that the minimum sentence is appropriate.”. The court further exercised its discretion in a manner favorable to Pirani by satisfying the ten-month sentence in part with home confinement.

Pirani was convicted of an offense reflecting a serious breach of duty by a public official sworn to uphold and enforce the law. Nothing in the record suggests a reasonable probability that the district court would have imposed a more lenient sentence absent Booker error. In these circumstances, Pirani has not carried his burden of demonstrating prejudicial plain error under Olano.

As the Eleventh Circuit said in Rodriguez, “where the effect of the error on the result in the district court is uncertain or indeterminate — where we would have to speculate — the appellant has not met his burden of showing a reasonable probability that the result would have been different but for the error.” 398 F.3d at 1301.

Because Pirani has failed to establish a reasonable probability of prejudice, we need not consider the fourth Olano factor, whether to exercise our discretion to review a plain error because it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544. In a number of cases, we have granted plain error review when the district court applied the wrong mandatory guidelines range because of clerical or other errors. See United States v. Warren, 361 F.3d 1055, 1059 (8th Cir.2004); United States v.

Weaver, 161 F.3d 528, 530 (8th Cir.1998); United States v. Comstock, 154 F.3d 845, 850 (8th Cir.1998). These decisions reflect proper concern that the fairness, integrity, and public reputation of judicial proeeed-ings are seriously affected when a defendant must spend additional time in prison on account of an illegal sentence. Accord Paladino, 401 F.3d at 483 (“It is a miscarriage of justice [justifying remand] to give a person an illegal sentence that increases his punishment, just as it is to convict an innocent person”). A Booker error, on the other hand, presents a different situation.

If the mandatory guidelines were properly applied, the sentence itself is not illegal under the advisory regime mandated by Booker, only the process the district court used in arriving at that sentence. In these circumstances, the fourth-factor inquiry seems more akin to United States v.

Cotton, where the Supreme Court refused to exercise its discretion to review a plain Apprendi error-failure to charge drug quantity in the indictment and submit that issue to the petit jury — because “[t]he real threat to the ‘fairness, integrity, and public reputation of judicial proceedings’ would be if respondents, despite the overwhelming and un-controverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial.” 535 U.S. at 634, 122 S.Ct. 1781.

Thus, we do not foreclose the possibility that there may be plain Booker errors that meet the third Olano factor but not the fourth. See United States v. Bruce, 396 F.3d 697, 719-20 (6th Cir.2005). III. Conviction Issues Pirani’s claims of trial error stem primarily from the government’s cross-examination of defense witness Linda Graham. On direct exam, Graham opined as to Pirani’s reputation for truthfulness in the community, buttressing her opinion by stating that she knew her son “was in good hands” when he was with Pirani. On cross exam, the prosecutor asked Graham a series of nine- questions.

Each question began, “Would your opinion of Louis Pirani’s reputation for truthfulness change if you knew,” and ended with various instances of alleged misconduct addressed in the government’s case in chief. Pirani did not object to these questions at trial but argues plain error on appeal. Pirani first argues that it was plain error to allow the prosecutor to ask these guilt-assuming questions, particularly one which assumed he was guilty of the charged offenses.

A number of courts have condemned prosecutor questions that assume the defendant’s guilt of the offense being tried as contrary to the accused’s presumption of innocence. See United States v. Guzman, 167 F.3d 1350, 1352 (11th Cir.1999). But the questions at issue here were not plain error. Only the last even obliquely referenced the charge that Pirani knowingly lied about owning an aircraft to federal authorities during an official investigation: Q.

Would your opinion of Louis Pira-ni’s reputation for truthfulness change if you knew that Louis Pirani has said that his brother, not he, was the sole owner of an airplane [when] Pirani’s own records show that he paid $9,300 in cash on the plane, not counting his half of the down payment? The question is phrased in the abstract, without mention of an audience, a time, or a place for the alleged statement. It takes the form of a hypothetical, not of a fact known to the prosecution.

Graham’s answer, “These are allegations that until I receive something that convinced me that they were truthful, it just doesn’t add up,” was consistent with the presumption of innocence and properly left the truth of the matter to be determined by the jury. While we do not endorse the practice, and suspect that a timely objection to this question would have been sustained, the issue was forfeited at trial and does not cast doubt on the fairness, integrity, .or public reputation of that judicial proceeding.

Pirani further argues that the district court committed plain error in allowing the prosecutor to question Graham, a reputation witness, about her opinion of Pirani’s character. The contention is based on a false premise. Although defense counsel may have asked questions about Pirani’s general reputation, Graham’s answers offered her opinion of Pira-ni’s character—someone she could trust to take care of her son.

When an accused offers evidence of a character trait, the government may rebut with cross examination inquiring into “relevant specific instances of conduct.” Fed.R.Evid. 404(a)(1), 405(a); see United States v. Monteleone, 77 F.3d 1086, 1090 (8th Cir.1996). Pirani acknowledges this principle but criticizes the district court for failing to conduct a sidebar or preliminary proceeding to be sure the prosecutor had a sufficient factual basis for the misconduct implied or assumed in the questions. We urged use of this procedure in United States v. Krapp, 815 F.2d 1183, 1186 (8th Cir.1987).

However, as in United States v. Bruguier, 161 F.3d 1145, 1149-50 (8th Cir.1998), there was no plain error in failing to employ it because the questions dealt with events addressed in the government’s case-in-chief, and we have no reason to think that government counsel had no factual basis for his implied assertions.

Finally, Pirani argues that the district court abused its discretion when it admitted into evidence a tape-recorded conversation in which Pirani stated to a cooperating officer that he had read about the investigation in the newspaper, knew officers who had been questioned and searched, but had no reason to be concerned. We review the district court’s evidentiary rulings for clear abuse of discretion. See United States v. Montano-Gudino, 309 F.3d 501, 505 (8th Cir.2002).

Pirani first argues that the evidence was irrelevant because, while the taped conversation tended to show he knew of the investigation, that fact was not an element of the charged offense, the unlawful making of false statements. Like the district court, we disagree. To meet its burden of proof, the government had to prove that Pirani knowingly made a false material statement. At a minimum, the recorded conversation tended to prove that Pirani knew his false statements to the interviewing agents were material to a government investigation.

Pirani next argues that the tape should have been excluded because its probative value was substantially outweighed by the risk of unfair prejudice. See Fed. R.Evid. 403. The tape includes Pirani and others swearing expressively during a casual conversation among officers, culminating in Pirani’s declaration that he had no reason to worry about the investigation. We doubt Pirani’s profane bravado came as a surprise to the jury, much less colored its view of whether he had committed the offenses charged.

In any event, the profanities did not create a risk of unfair prejudice that substantially outweighed the tape’s probative value! There was no abuse of the district court’s substantial evidentiary discretion. The judgment of the district court is AFFIRMED. Let this court’s mandate issue forthwith. . United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.2005); United States v. Mares, 402 F.3d 511(5th Cir.2005); United States v. Rodriguez, 398 F.3d 1291 (11th Cir.2005). . The HONORABLE SUSAN WEBBER WRIGHT, Chief Judge, United States District Court for the Eastern. District of Arkansas, .

We have granted the government’s petition for rehearing en banc in Coffey. . Nothing in Booker suggests that sentencing judges are required to find sentence-enhancing facts beyond a reasonable doubt under the advisory Guidelines regime. See U.S.S.G. § 6A1.3, comment., prescribing the preponderance of the evidence standard; accord Mares, 402 F.3d at 519 & n. 6. . See Antonakopoulos, 399 F.3d at 75; United States v. Williams, 399 F.3d 450, 459 & n. 12 (2d Cir.2005); Mares, 402 F.3d at 521; United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir.2005); United States v.

Rodriguez, 398 F.3d 1291, 1299-1306 (11th Cir.2005). . During the lengthy sentencing hearing, the district court twice expressed her dislike of the Guidelines. But that is not surprising given' the complexity of applying the Guidelines in this case. It would be relevant to plain error prejudice if the district court had opined that the sentence produced by the mandatory Guidelines was unreasonable. A court's dislike of the Guidelines in general is not relevant.