United States v. David H. Archuleta, 412 F.3d 1003 (8th Cir. 2005). · Go Syfert
United States v. David H. Archuleta, 412 F.3d 1003 (8th Cir. 2005). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 2008 · 2 courts · …nothing in booker changes the interpretation of mcmillan in our post- apprendi cases. at p. 1007
67 citation events (67 in the last 25 years) across 7 distinct courts.
Strongest positive: United States v. Yvonne Garth (ca8, 2008-09-03)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 46 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Yvonne Garth
8th Cir. · 2008 · quote attribution · 1 verbatim quote · confidence high
nothing in booker changes the interpretation of mcmillan in our post- apprendi cases.
discussed Cited as authority (verbatim quote) United States v. Sean Michael Grier (2×) also: Cited "see"
3rd Cir. · 2007 · signal: see · quote attribution · 1 verbatim quote · confidence high
nothing in booker changes the interpretation of mcmillan in our post- apprendi cases.
discussed Cited as authority (verbatim quote) United States v. Lisa Brandt
8th Cir. · 2005 · signal: see · quote attribution · 1 verbatim quote · confidence high
we, of course, -2- will follow our circuit precedent and apply harmless error review to both types of booker error.
discussed Cited as authority (quoted) United States v. Grier
3rd Cir. · 2007 · signal: see · quote attribution · 1 verbatim quote · confidence high
nothing in booker changes the interpretation of mcmillan in our post-apprendi cases.
discussed Cited as authority (rule) United States v. Askia Washington (2×)
3rd Cir. · 2017 · signal: cf. · confidence medium
See United States v. Turner, 718 F.3d 226, 235 (3d Cir. 2013); cf. United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir. 2005) (reviewing newly raised constitutional argument for plain error) .
discussed Cited as authority (rule) United States v. Eric Bederson
8th Cir. · 2015 · confidence medium
See United States v. Wiest, 596 F.3d 906, 911 (8th Cir.2010) (standard of review for Eighth Amendment challenge to sentence); United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir.2005) (explaining standard for plain error review when due process claim is first raised on appeal).
discussed Cited as authority (rule) United States v. James Brooks
5th Cir. · 2012 · confidence medium
See United States v. Villareal-Amarillas, 562 F.3d 892 , 894-98 & n. 3 (8th Cir.2009) (holding sentencing factors may be proven by preponderance; finding dicta in United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir.2005), expressing otherwise was erroneous); United States v. Fisher, 502 F.3d 293, 308 (3d Cir.2007) (holding preponderance sole standard of proof in sentencing; stating "because the Guidelines are now advisory and district judges are empowered to discharge their duties fully in the first instance, it is a logical impossibility for the ‘tail to wag the dog,’ as could occur …
discussed Cited as authority (rule) United States v. Chavez
9th Cir. · 2010 · confidence medium
United States v. Ray, 484 F.3d 1168, 1171 (9th Cir.2007) (“[T]he definition of ‘statutory maximum’ continues to come from the United States Code.”); see also United States v. Bond, 414 F.3d 542, 545 (5th Cir.2005) (holding that the “usual and ordinary” meaning of “statutory maximum” is “the upper limit of punishment that Congress has legislatively specified for violation of a statute”) (citation and internal quotation marks omitted); United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir.2005) (“[T]he criminal statute of conviction still provides ‘the maximum [penalty…
discussed Cited as authority (rule) United States v. Manuel Villareal-Amarillas (2×)
8th Cir. · 2009 · confidence medium
Applying the oft-quoted “tail wags the dog” passage from McMillan in its original context -- 3 In United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir. 2005), the panel observed without further analysis that “[n]othing in Booker changes the interpretation of McMillan in our post-Apprendi cases.” This statement was not necessary to the decision in Archuleta, so it is not binding authority.
discussed Cited as authority (rule) United States v. Villareal-Amarillas
8th Cir. · 2009 · confidence medium
In United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir.2005), the panel observed without further analysis that "[n]othing in Booker changes the interpretation of McMillan in our post-Apprendi cases.” This statement was not necessary to the decision in Archuleta , so it is not binding authority.
cited Cited as authority (rule) United States v. Garth
8th Cir. · 2008 · confidence medium
United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir.2005) ("Nothing in Booker changes the interpretation of McMillan in our post-Apprendi cases.").
cited Cited as authority (rule) United States v. Steven Bradford
8th Cir. · 2007 · confidence medium
See, e.g., Okai, 454 F.3d at 852 ; United States v. Archuleta, 412 F.3d 1003, 1007-08 (8th Cir. 2005); United States v. Anderson, 243 F.3d 478, 485-86 (8th Cir. 2001).
cited Cited as authority (rule) United States v. Bradford
8th Cir. · 2007 · confidence medium
See, e.g., Okay 454 F.3d at 852 ; United States v. Archuleta, 412 F.3d 1003, 1007-08 (8th Cir.2005); United States v. Anderson, 243 F.3d 478, 485-86 (8th Cir.2001).
discussed Cited as authority (rule) United States v. Christopher K.P. Reuter (2×)
7th Cir. · 2006 · confidence medium
(The full court, however, has now granted rehearing en banc and withdrawn the panel opinion. 453 F.3d 554 (3rd Cir.2006).) In contrast, the Eighth Circuit, after Booker but before Grier , reaffirmed its adoption of the Kikumura rule, United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir.2005), but without discussion beyond the summary statement that Booker had changed nothing; as usual in a Kikumura case, the court went on to find that the tail had not wagged the dog in the case before it.
discussed Cited as authority (rule) United States v. Reuter, Christopher
7th Cir. · 2006 · confidence medium
In contrast, the Eighth Circuit, after Booker but before Grier, reaffirmed its adoption of the Kikumura rule, United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir. 2005), but without discussion beyond the summary statement that Booker had changed nothing; as usual in a Kikumura case, the court went on to find that the tail had not wagged the dog in the case before it.
discussed Cited as authority (rule) United States v. Jeffrey McDonald
8th Cir. · 2006 · confidence medium
We have consistently stated "[u]nder the post-Booker advisory system, the Federal Sentencing Act 'requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well.'" United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir. 2005) (quoting United States v. Booker, 125 S. Ct. 738, 757 (2005)).
discussed Cited as authority (rule) United States v. Jeffrey Allen McDonald (2×)
8th Cir. · 2006 · confidence medium
We have consistently stated “[ujnder the post-Booker advisory system, the Federal Sentencing Act ‘requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well.’ ” United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir.2005) (quoting United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738, 757 , 160 L.Ed.2d 621 (2005)).
cited Cited as authority (rule) United States v. Michael Gutierrez
8th Cir. · 2006 · confidence medium
United States v. Archuleta, 412 F.3d 1003, 1005 (8th Cir. 2005).
cited Cited as authority (rule) United States v. Mike R. Gutierrez, United States of America v. Mike R. Gutierrez
8th Cir. · 2006 · confidence medium
United States v. Archuleta, 412 F.3d 1003, 1005 (8th Cir.2005).
discussed Cited as authority (rule) United States v. Frederick Craiglow
8th Cir. · 2005 · confidence medium
Londondio, 420 F.3d at 791; see also United States v. Henderson, 416 F.3d 686, 695 (8th Cir. 2005) (stating that the most significant indicator that the district court's sentencing error was harmless was the district court's statement that it was using the Guidelines only as a guide if they were found to be unconstitutional); United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir. 2005) (finding harmless error where the district court refused to find the Guidelines unconstitutional but gave the defendant an alternative sentence); United States v. Shannon, 414 F.3d 921, 923 (8th Cir. 2005) (a…
discussed Cited as authority (rule) United States v. Frederick Freeman Craiglow
8th Cir. · 2005 · confidence medium
Londondio, 420 F.3d at 791; see also United States v. Henderson, 416 F.3d 686, 695 (8th Cir.2005) (stating that the most significant indicator that the district court’s sentencing error was harmless was the district court’s statement that it was using the Guidelines only as a guide if they were found to be unconstitutional); United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir.2005) (finding harmless error where the district court refused to find the Guidelines unconstitutional but gave the defendant an alternative sentence); United States v. Shannon, 414 F.3d 921, 923 (8th Cir.2005) (…
discussed Cited as authority (rule) United States v. John Kevin Talley
11th Cir. · 2005 · confidence medium
The Sixth Circuit, in United States v. Webb, 403 F.3d 373 , 385 n. 9 (6th Cir.2005), expressly “decline[d] to hold that a sentence within a proper Guidelines range is per se reasonable.” Similarly, the Eighth Circuit, in United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir.2005), stated that it had “not yet held that a sentence within a correctly calculated Guideline range is reasonable per se.” The Fifth Circuit, in United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005), stated that it would give great deference to a sentence imposed by the district court judge if it was with…
discussed Cited as authority (rule) United States v. John A. Schafer (2×) also: Cited "see"
8th Cir. · 2005 · confidence medium
In this circuit, when the defendant has preserved a claim of Booker error by arguing Blakely to the district court, we review the claim for harmless error whether “addressing a Sixth Amendment challenge or a challenge to the use of mandatory, as opposed to advisory, guidelines.” United States v. Archuleta, 412 F.3d 1003, 1005-06 (8th Cir. 2005).
discussed Cited as authority (rule) United States v. John A. Schafer (2×) also: Cited "see"
8th Cir. · 2005 · confidence medium
In this circuit, when the defendant has preserved a claim of Booker error by arguing Blakely to the district court, we review the claim for harmless error whether “addressing a Sixth Amendment challenge or a challenge to the use of mandatory, as opposed to advisory, guidelines.” United States v. Archuleta, 412 F.3d 1003, 1005-06 (8th Cir.2005).
discussed Cited as authority (rule) United States v. Luis Zuleta
8th Cir. · 2005 · confidence medium
United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir. 2005). -4- Zuleta specifically challenges the district court’s refusal to grant him an offense level reduction in recognition of his minor role as courier.
cited Cited as authority (rule) United States v. Luis Zuleta
8th Cir. · 2005 · confidence medium
United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir.2005).
discussed Cited as authority (rule) Davis v. State
Ind. Ct. App. · 2005 · confidence medium
See United States v. Vazquez-Rivera, 407 F.3d 476, 489-90 (Ist Cir.2005), cert. denied; United States v. Pineiro, 410 F.3d 282, 285 (5th Cir.2005); United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir.2005); United States v. Lang, 405 F.3d 1060, 1065 (10th Cir.2005); United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir.2005); United States v. Coumaris, 399 F.3d 343, 350 (D.C.Cir. 2005).
cited Cited as authority (rule) United States v. Kent M. Flentge
8th Cir. · 2005 · confidence medium
United States v. Archuleta, 412 F.3d 1003, 1005 (8th Cir.2005).
cited Cited as authority (rule) United States v. Timothy Red Elk
8th Cir. · 2005 · confidence medium
United States v. Archuleta, 412 F.3d 1003, 1005-06 (8th Cir.2005).
cited Cited as authority (rule) United States v. Timothy Red Elk
8th Cir. · 2005 · confidence medium
United States v. Archuleta, 412 F.3d 1003, 1005-06 (8th Cir. 2005).
cited Cited as authority (rule) United States v. Derrick Crume
8th Cir. · 2005 · signal: cf. · confidence medium
Cf. U.S. v. Archuleta, 412 F.3d 1003, 1006-07 (8th Cir. 2005).
cited Cited as authority (rule) United States v. Derrick Crume
8th Cir. · 2005 · signal: cf. · confidence medium
Cf. U.S. v. Archuleta, 412 F.3d 1003, 1006-07 (8th Cir.2005).
discussed Cited as authority (rule) United States v. Kenneth Ray Ellis
8th Cir. · 2005 · confidence medium
Cf. Haidley, 400 F.3d at 645; Garcia, 406 F.3d at 529 n. 2; United States v. Galaviz, 415 F.3d 946 , 949 n. 1 (2005); United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir.2005) (applying “reasonable doubt” standard, on the assumption that the sentence violated the Sixth Amendment).
discussed Cited as authority (rule) United States v. Quillin Porter
8th Cir. · 2005 · confidence medium
Cf. Bassett, 406 F.3d at 527 (upholding alternative sentence where district court stated it had considered all of the factors set forth at 18 U.S.C. § 3553 (a)); United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir. 2005) (same).
discussed Cited as authority (rule) United States v. Quillin Porter
8th Cir. · 2005 · confidence medium
Cf. Bassett, 406 F.3d at 527 (upholding alternative sentence where district court stated it had considered all of the factors set forth at 18 U.S.C. § 3553 (a)); United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir.2005) (same).
cited Cited "see" United States v. Fisher
3rd Cir. · 2007 · signal: see · confidence high
See Archuleta, 412 F.3d at 1007 .
discussed Cited "see" United States v. Fisher (2×)
3rd Cir. · 2007 · signal: see · confidence high
See Archuleta, 412 F.3d at 1007 .
discussed Cited "see" United States v. Leo William Anderson (2×)
8th Cir. · 2005 · signal: see · confidence high
See United States v. Archuleta, 412 F.3d 1003, 1005-06 (8th Cir.2005).
cited Cited "see" United States v. Lloyd Engler
8th Cir. · 2005 · signal: see · confidence high
See United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir. 2005).
discussed Cited "see" United States v. Lloyd Louis Engler (2×)
8th Cir. · 2005 · signal: see · confidence high
See United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir.2005).
cited Cited "see" United States v. Jim Thomas
8th Cir. · 2005 · signal: see · confidence high
See United States v. Archuleta, 412 F.3d. 1003, 1005-06 (8th Cir. 2005).
cited Cited "see" UNITED STATES OF AMERICA, PLAINTIFF—APPELLEE v. JIM THOMAS, DEFENDANT—APPELLANT
8th Cir. · 2005 · signal: see · confidence high
See United States v. Archuleta, 412 F.3d 1003, 1005-06 (8th Cir.2005).
discussed Cited "see" United States v. Esequicio Londondio
8th Cir. · 2005 · signal: see · confidence high
See United States v. Archuleta, 412 F.3d 1003, 1005 (8th Cir.2005); United States v. Perez-Ramirez, 415 F.3d 876, 878 (8th Cir.2005) (“[A] non-constitutional Booker error is to be disregarded as harmless unless there is grave doubt as to whether the defendant would have received a more favorable sentence under ah advisory guidelines system.”).
discussed Cited "see" United States v. Esequicio Londondio, United States of America v. Carlos Alberto Gonzalez-Rodriguez, United States of America v. Pablo Jaramillo, United States of America v. Juan Fernando Palacio, United States of America v. Nahum Alcantora
8th Cir. · 2005 · signal: see · confidence high
See United States v. Archuleta, 412 F.3d 1003, 1005 (8th Cir.2005); United States v. Perez-Ramirez, 415 F.3d 876, 878 (8th Cir.2005) ("[A] non-constitutional Booker error is to be disregarded as harmless unless there is grave doubt as to whether the defendant would have received a more favorable sentence under an advisory guidelines system."). 38 While the District Court's use of the guidelines as mandatory was erroneous, see Pirani, 406 F.3d at 550 , there is nothing in the record that causes us grave doubt as to whether Palacio would have received a more favorable sentence absent the Booker …
discussed Cited "see" United States v. Lisa Brandt
8th Cir. · 2005 · signal: see · confidence high
See United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir.2005) (“We, of course, will follow our circuit precedent and apply harmless error review to both types of Booker error.”); United States v. Bassett, 406 F.3d 526, 527 (8th Cir.2005) (per cu-riam) (reviewing for harmless error a preserved Booker challenge to a sentence based on enhancements that violated the Sixth Amendment).
cited Cited "see, e.g." United States v. Ronnie Langston
8th Cir. · 2015 · signal: see also · confidence medium
See also United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir.2005) (discussing harmless error), citing, e.g., Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
David H. ARCHULETA, Appellant
04-3438.
Court of Appeals for the Eighth Circuit.
Jun 28, 2005.
412 F.3d 1003
Michael J. Hansen, argued, Lincoln, NE, for appellant., Jan W. Sharp, AUSA, argued, Omaha, NE, for appellee.
Wollman, Lay, Hansen.
Cited by 56 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 71%
Citer courts: Third Circuit (1)
HANSEN, Circuit Judge.

David H. Archuleta appeals the sentence imposed by the district court [1] following Archuleta’s guilty plea to one count of mail fraud, 18 U.S.C. § 1341 (2000), and argues that the enhancements to his sentence imposed under the United States Sentencing Guidelines (Guidelines) violated his Sixth Amendment rights. We affirm the judgment of the district court.

I.

Archuleta was a long-time employee of the Union Pacific Railroad (UPRR), where he was the Purchasing Manager of Special Equipment. He and co-defendant Raymond Kyral devised a scheme to defraud UPRR by causing UPRR to pay materially false invoices submitted by a company owned by Kyral and approved for payment by Archuleta. Kyral then gave Archuleta a kickback from the fraudulent scheme. The two men defrauded UPRR of approximately $1.5 million over a four-year period.

The government charged Archuleta with three counts of mail fraud. Archuleta pleaded guilty on December 30, 2003, to Count I of the indictment, and the government agreed to dismiss the remaining mail fraud counts. The probation office prepared a presentence investigation report (PSR) which recommended: a twelve-level enhancement for a loss of more than $1.5 million and less than $2.5 million, USSG § 2Fl.l(b)(l)(M) (Nov.1998); a two-level enhancement for an offense involving more than minimal planning, USSG § 2F1.1(b)(2)(A); a two-level enhancement for Archuleta’s aggravating role in the offense, USSG § 3Bl.l(c); and a two-level enhancement for abuse of a position of trust, USSG § 3B1.3. Archuleta objected to these four paragraphs of the PSR on the basis that the Supreme Court’s then-recently decided case of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applied to the Guidelines and required that the facts support[*1005] ing the proposed enhancements had to be proved to a jury beyond a reasonable doubt rather than decided by a judge.

At the sentencing hearing, Archuleta stipulated that the government could prove by a preponderance of the evidence that the amount of the loss ranged between $800,000 and $1.5 million (resulting in an eleven-level rather than a twelve-level enhancement), that he abused a position of public or private trust, and that the offense involved more than minimal planning. He maintained his argument, however, that the enhancements had to be proved to a jury beyond a reasonable doubt under Blakely. The district court sustained Archuleta’s objection to the two-level aggravating role enhancement but overruled the remaining objections, subject to the adjusted eleven-level enhancement for the amount of the loss. The district court refused to declare the guidelines unconstitutional and sever the allegedly offending enhancements as requested by Archuleta. The district court sentenced Archuleta to 27 months imprisonment, the bottom of the relevant Guidelines range based on the stipulated facts. The district court stated that it would have imposed the same sentence if the Guidelines were found to be unconstitutional as a whole and it was bound only by the statutory range of zero to five years. Ar-chuleta appeals his sentence.

II.

The Supreme Court has now extended its Blakely holding to the United States Sentencing Guidelines, holding that application of mandatory Guideline sentencing enhancements based on judge-found facts violates a defendant’s Sixth Amendment rights. See United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005). In Justice Breyer’s remedial opinion, the Court remedied the Sixth Amendment violation by severing the statutory provisions making the Guidelines mandatory, thus leaving the Guidelines in place but placing them in an advisory status rather than binding mandates. See id. at 756-57 (excising 18 U.S.C. § 3553(b)(1) (making the guidelines mandatory) and 18 U.S.C. 3742(e) (prescribing appellate standards of review)).

We review Archuleta’s preserved challenge for harmless error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc) (holding that one way Booker error is preserved is if the defendant argued Blakely below). For purposes of this opinion, we assume that Ar-chuleta’s sentence violated the Sixth Amendment despite his stipulation of the underlying facts to a preponderance of the evidence because he challenged the identity of the fact finder as well as the standard of proof. See Booker, 125 S.Ct. at 748-49 (characterizing the Sixth Amendment violation as the determination by a judge, as opposed to a jury, of facts that increase a defendant’s punishment under a mandatory Guideline regime); see also United States v. Huber, 404 F.3d 1047, 1063-64 (8th Cir.2005) (noting that the defendant “at least has an argument under Appren-di ” where the jury made its loss finding based on the preponderance of the evidence rather than beyond a reasonable doubt). Our review would be the same whether we were addressing a Sixth Amendment challenge or a challenge to the use of mandatory, as opposed to advisory, guidelines. See Pirani, 406 F.3d at 552-53 (noting the two distinct types of Booker error); United States v. Bassett, 406 F.3d 526, 527 (8th Cir.2005) (applying harmless error review to conceded Sixth Amendment error). We note that at least one circuit remands without applying harmless error analysis if a case involves a Sixth Amendment error. See United [*1006] States v. Akpan, 407 F.3d 360, 376 & n. 55 (5th Cir.2005) (noting divergent views between Sixth Circuit and D.C. Circuit). We, of course, will follow our circuit precedent and apply harmless error review to both types of Booker error.

Federal Rule of Criminal Procedure 52(a) dictates that “[a]ny error ... that does not affect substantial rights must be disregarded.” To establish that the sentencing error was harmless, the government must establish beyond a reasonable doubt that the error did not affect Archuleta’s ultimate sentence. In other words, the government must establish beyond a reasonable doubt that the district court would not have sentenced Archuleta to a lower sentence had it correctly applied the post-Booker regime. See Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (defining the test for whether a Sixth Amendment violation is harmless as “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained’ ”) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)); Bassett, 406 F.3d at 527 (concluding that “the Sixth Amendment error did not affect the ultimate sentence and was harmless beyond a reasonable doubt”).

Under the post -Booker advisory system, the Federal Sentencing Act “requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well.” Booker, 125 S.Ct. at 757 (internal citations omitted). Although the district court refused to find the Guidelines unconstitutional, it gave Ar-chuleta an alternative sentence, stating that “if the Guidelines are declared unconstitutional, as a whole, rather than simply those parts which may be severable under your theory, ... I would be sentencing within the statutory limits. And it would be my intention to sentence at the same level at which I am going to be sentencing today if I were operating within the statutory limits.” (Sent. Tr. at 6.) After calculating Archuleta’s Guidelines range based on the stipulated facts, the district court explicitly referenced the non-guideline factors in § 3553(a), as well as Archuleta’s acceptance of responsibility and the plea agreement, in setting his sentence. (Id. at 12.) The district court chose the bottom of the sentencing range in the belief that it would “serve the purposes of both [sic] general deterrence, specific deterrence, and an opportunity for the defendant to participate in appropriate programs within the Bureau of Prisons.” (Id. at 13.)

Although the district court’s alternative sentence presumed that the Guidelines as a whole were unconstitutional, the alternative sentence satisfies Booker’s requirements. The district court calculated Archuleta’s Guidelines range and then considered the other statutory factors in setting Archuleta’s sentence. The court explicitly stated that it would have imposed the same sentence if not bound by the Guidelines, effectively treating them as advisory. Further, there is no evidence in this record to support a different sentence when consideration is given to the other statutory factors. Thus, the government has established beyond a reasonable doubt that Archuleta would not have received a lower sentence had the district court applied the sentencing regime required by Booker. See Bassett, 406 F.3d at 527 (holding that Sixth Amendment error in sentencing defendant based on enhancements not admitted or found by a jury was harmless where the district court announced an alternative sentence after considering all of the § 3553(a) factors); United States v. Marcussen, 403 F.3d 982, 985 (8th Cir.2005) (holding that sentencing[*1007] the defendant under mandatory Guidelines was harmless where the district court gave an alternate sentence and considered other § 3553(a) factors); United States v. Thompson, 403 F.3d 533, 535-36 (8th Cir.2005) (same).

Post-Booker, we review a district court’s sentence for reasonableness. See Booker, 125 S.Ct. at 765-66. While we have not yet held that a sentence within a correctly calculated Guideline range is reasonable per se, Archuleta has put forth no reason to establish that he should have been sentenced outside of that range. Considering the record as a whole, the § 3553(a) factors, and the district court’s careful analysis, we believe that a 27-month sentence for mail fraud related to a scheme to defraud one’s employer of nearly $1.5 million over a four-year period was reasonable.

During oral argument, Archuleta suggested that the enhancements to his sentence violated his due process rights because the enhancements increased his sentence to such an extent that the enhancements became the “tail which wags the dog of the substantive offense.” McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (upholding a state statute that set the mandatory minimum sentence for certain enumerated offenses at five years based on the judge’s determination by a preponderance of the evidence that the defendant visibly possessed a gun in connection with the underlying offense). Because Ar-chuleta raised this McMillan-type due process claim for the first time on appeal (indeed, at oral argument), we review the claim for plain error. See United States v. Hart, 397 F.3d 643, 647 (8th Cir.2005) (“Under the plain error standard, we will only reverse obvious errors which affect a defendant’s substantial rights and seriously affect the fairness, integrity, or public reputation of judicial proceedings.” (citation and internal marks omitted)).

The Supreme Court recognized in McMillan that the constitutional protections of due process limit the government’s ability to establish sentencing factors that subject a defendant to a sentence wholly unrelated to the substantive offense of which he was convicted, but declined to define that limit. See McMillan, 477 U.S. at 87-88, 106 S.Ct. 2411 (distinguishing Mullaney v. Wilbur, 421 U.S. 684, 700, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), where the defendant in Mullaney “faced ‘a differential in sentencing ranging from a nominal fine to a mandatory life sentence.’ ”). Since Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have applied McMillan to cases where Guidelines sentencing factors were used to enhance a defendant’s sentence but not beyond the statutory maximum as defined by the criminal statute of conviction. See, e.g., United States v. Anderson, 243 F.3d 478, 485-86 (8th Cir.2001) (noting that McMillan-type due process violations are rare and upholding a 360-month sentence based on a relevant conduct enhancement that increased the defendant’s unenhanced range of 235-293 months). Nothing in Booker changes the interpretation of McMillan in our post-Apprendi cases. Because the Guidelines are now advisory rather than mandatory, the criminal statute of conviction still provides “the maximum [penalty] authorized by the facts established by a plea of guilty or a jury verdict.” Booker, 125 S.Ct. at 756. We review Archuleta’s McMillan challenge to determine whether judge-found facts increased his sentence within the statutory range to such a degree as to have violated his right to due process.

The base offense level for mail fraud is a level six, which, when coupled with Ar-chuleta’s criminal history category of I, results in a range of zero to six months.[*1008] See USSG § 2F1.1(a). After the adjustments were made to Archuleta’s base offense level, he faced a sentencing range of 27 to 33 months and received a 27-month sentence. Archuleta still faced a statutory range of zero to five years. See 18 U.S.C. § 1341. [2] Thus, the 27-month sentence remained well within the statutory range (indeed less than half of the statutory maximum), and the increase from a zero-to-six-month range to 27 months is not such an increase that we would say the enhancements were the tail that wagged the substantive offense. See Anderson, 243 F.3d at 485-86 (increase of at least 67 months did not raise due process concerns); United States v. Alvarez, 168 F.3d 1084, 1087-88 (8th Cir.1999) (increase of at least 88 months did not raise due process concerns). Archuleta’s due process claim therefore fails; there was no error, let alone error.

III.

The district court’s judgment is affirmed.

1

. The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska.

2

. Congress increased the maximum statutory penalty for mail fraud from five to twenty years in 2002. See Sarbanes-Oxley Act of 2002, Pub.L. 107-204, § 903(a), 116 Stat. 745, 804 (2002). The relevant statute is the 2000 version in effect at the time of Archule-ta's offense.