United States Court of Appeals
For the First Circuit
No. 03-2173
UNITED STATES OF AMERICA,
Appellee,
v.
GERMÁN GONZÁLEZ-MERCADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Rafael F. Castro Lang for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney (Senior
Appellate Attorney), with whom H. S. Garcia, United States
Attorney, and Sonia I. Torres-Pabón, Assistant United States
Attorney (Chief, Criminal Division), were on brief, for appellee.
April 1, 2005
SELYA, Circuit Judge. On March 3, 2003, defendant-
appellant Germán González-Mercado pleaded guilty to three counts of
carjacking and two counts of aggravated carjacking (i.e.,
carjacking resulting in serious bodily injury). See 18 U.S.C.
§ 2119(1), (2). The district court sentenced him to a total of 600
months in prison. On appeal, González-Mercado seeks to challenge
the validity of his guilty pleas, the legal sufficiency of the
evidence underpinning his conviction on one of the five counts, and
his sentence. Concluding, as we do, that these assignments of
error are meritless, we affirm the judgment below.
I. BACKGROUND
On January 30, 2002, a federal grand jury sitting in the
District of Puerto Rico returned an indictment charging the
appellant with three counts of aiding and abetting carjackings in
violation of 18 U.S.C. §§ 2, 2119(1) and two counts of aiding and
abetting aggravated carjackings in violation of 18 U.S.C. §§ 2,
2119(2). The indictment alleged that the appellant and his
confederates had appropriated five motor vehicles. Specifically,
count one charged that the appellant and Miguel Alamo Castro
(Alamo) carjacked a Toyota Echo on December 31, 2001; count two
charged that the appellant, Alamo, and Ismael Ortega Santana
(Ortega) carjacked a Nissan Xterra on January 10, 2002; count three
charged that the appellant and Alamo carjacked a Chevrolet Cavalier
on January 14, 2002; count four charged that the appellant and
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Alamo carjacked a Nissan Pathfinder on the same date; and count
five charged that the appellant and Ortega carjacked a Mitsubishi
Montero on January 24, 2002. In two instances (counts one and
three), the indictment further charged that the carjackings had
resulted in serious bodily injury in violation of 18 U.S.C.
§ 2119(2).
The appellant initially maintained his innocence. He
subsequently moved both to change his pleas and to dismiss count
three insofar as it charged aggravated carjacking. In a memorandum
accompanying the motion to dismiss, he argued that the incident
giving rise to the "serious bodily injury" allegation — the rape of
a woman known as G.K.L. — did not suffice to trigger liability for
aggravated carjacking. The appellant's thesis ran as follows. The
crime of carjacking requires, inter alia, the taking of a motor
vehicle "from the person or presence of another by force and
violence or by intimidation." 18 U.S.C. § 2119. If, however,
"serious bodily injury . . . results," the crime becomes aggravated
carjacking, a separate and distinct offense punishable under the
heightened penalty provisions contained in 18 U.S.C. § 2119(2).
While the appellant concedes that rape qualifies as a serious
bodily injury within the purview of section 2119(2), see United
States v. Vazquez-Rivera, 135 F.3d 172, 174-75 (1st Cir. 1998), he
argues that the rape of G.K.L. was independent of, and thus did not
"result" from, the taking of a motor vehicle.
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The question of a change of plea was held in abeyance
pending the disposition of the motion to dismiss. The parties
stipulated to the facts underlying count three. We summarize them
here.
On January 14, 2002, Alamo and the appellant, aiding and
abetting one another, took a Chevrolet Cavalier from Gerald Morales
by means of force and intimidation (including the brandishing of
what appeared to be firearms). With Morales and Morales's
passenger, Héctor Berrios, in the vehicle and the appellant at the
wheel, the carjackers drove to various ATM machines and forced
Morales at gunpoint to withdraw cash from his account. When that
source of funds had been exhausted, Morales, in response to the
appellant's demands, indicated that he had keys to G.K.L.'s
apartment and that the carjackers might be able to obtain more
money there. Intrigued by this possibility, the carjackers drove
to the apartment complex. Upon their arrival, they locked Berrios
(whose hands had been tied with his own shoelaces) in the trunk of
Morales's automobile. The appellant retained the car keys.
Morales escorted the carjackers into G.K.L.'s apartment.
The men entered G.K.L.'s bedroom and awoke her, demanding money.
She replied that she had no cash and did not possess an ATM card.
At that point, Alamo and Morales receded into the living room, but
the appellant remained behind and raped G.K.L. When the appellant
emerged from the bedroom, the trio departed with G.K.L.'s cell
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phone and several bottles of wine. They then forced Berrios, at
gunpoint, to direct them to his car (a Nissan Pathfinder). Once
there, the appellant and Alamo perfected another carjacking (which
became the subject of count four of the indictment). The
carjackers did not release Morales and Berrios until they had made
an unsuccessful attempt to empty Berrios's bank account.
Taking these facts into account, the district court, in
an unpublished order, denied the motion to dismiss count three. In
so ruling, the court rejected the appellant's contention that
because G.K.L. was neither the owner of the carjacked vehicle nor
physically present at the time of the carjacking, the rape could
not be said to "result" from the carjacking offense. The court
noted that in Vazquez-Rivera, we held that "injuries covered [by
section 2119(2)] are not limited to those resulting from the
'taking' of a vehicle, but also include those caused by the
carjacker at any point during his or her retention of the vehicle."
Id. at 178. In the district court's view, that principle applied
because, at the time of the rape, the appellant was still in
retention of the carjacked vehicle, he kept the keys in his pocket,
he had a victim trapped in the car's trunk, and he held the car's
owner under his command. Thus, the serious bodily injury endured
by G.K.L. could be said to "result" from the carjacking, as
required by the statute.
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Following the denial of his motion to dismiss, the
appellant reactivated his motion for a change of plea. After some
skirmishing, not relevant here, the district court conducted a
hearing on March 3, 2003. The change-of-plea colloquy was
thorough. Significantly, the appellant admitted during that
colloquy that he and Alamo had placed Berrios in the trunk of
Morales's vehicle; that he had retained the keys to the car during
his visit to G.K.L.'s abode; and that, while in possession of the
keys and in control of Berrios and Morales, he raped G.K.L. Based
on these admissions, the district court permitted the appellant to
enter a plea of guilty to count three as well as to the other four
counts of the indictment. The court also ordered the preparation
of a presentence investigation report (PSI Report) and set the case
for sentencing.
On June 16, 2003, the district court convened the
disposition hearing. The court ascertained that defense counsel
had discussed the PSI Report with the appellant and fully explained
its contents to him. The appellant acknowledged that he understood
what the report said. For all intents and purposes, the defense
raised no objections to the PSI Report.1 The court then stated
that, in the absence of any material objections to the PSI Report,
it would adopt the findings contained therein.
1
The only misgiving that defense counsel voiced was an
extremely minor correction to the report that had nothing to do
with any of the issues on appeal.
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The court calculated a guideline sentencing range of 360
months to life (total offense level — 40; criminal history category
— III). It sentenced the appellant to serve 600 months in prison,
imposing consecutive 300-month terms for each of counts one and
three, and concurrent 180-month terms for each of counts two, four,
and five. Individually, each of these terms represented the
statutory maximum for the offense of conviction. See 18 U.S.C.
§ 2119(2) (setting a twenty-five-year maximum for aggravated
carjacking); id. § 2119(1) (setting a fifteen-year maximum for
simple carjacking). The court also ordered a supervised release
term of five years, a special assessment of $500, and restitution
in the amount of $5,950. This timely appeal followed.
II. ANALYSIS
González-Mercado seeks to challenge the validity of his
guilty pleas, his conviction on count three, and his sentence. We
consider each challenge in turn.
A. The Validity of the Guilty Pleas.
In supplemental briefing and a letter submitted pursuant
to Fed. R. App. P. 28(j), the appellant maintains that his pleas as
to all five counts must be set aside because they were not entered
in conformity with Fed. R. Crim. P. 11. To elaborate, he insists
that his pleas were not tendered intelligently because they were
based upon a mistaken understanding of the operation of the federal
sentencing guidelines. Although a guilty plea waives most claims
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of error, it does not preclude an attack on the voluntary and
intelligent character of the plea itself. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973).
This claim derives from the Supreme Court's recent
decision in United States v. Booker, 125 S. Ct. 738 (2005). The
Booker Court held that "[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," id. at 756, insofar as the sentence is
imposed under a mandatory guideline regime, see id. at 756-57, 767-
68. The appellant posits that his guilty pleas are invalid because
they were not informed by that holding (and, thus, were tendered on
the erroneous assumption that the sentencing guidelines were
mandatory).
We have heard and rejected this argument before. See
United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005) (holding
that "the possibility of a favorable change in the law occurring
after a plea is one of the normal risks that accompany a guilty
plea"); see also Brady v. United States, 397 U.S. 742, 757 (1970)
(stating that "a voluntary plea of guilty intelligently made in
light of the then applicable law does not become vulnerable because
later judicial decisions indicate that the plea rested on a faulty
premise"). Under the doctrine of stare decisis, then, the issue is
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foreclosed. See Eulitt v. Me. Dep't of Educ., 386 F.3d 344, 348
(1st Cir. 2004) (explaining that "the doctrine of stare decisis
precludes the relitigation of legal issues that have previously
been heard and authoritatively determined"); Gately v.
Massachusetts, 2 F.3d 1221, 1226 (1st Cir. 1993) (stating that
stare decisis "renders the ruling of law in a case binding in
future cases before the same court or other courts owing obedience
to the decision"). As we explained in Sahlin, 399 F.3d at 31, the
Booker decision, in and of itself, does not undermine the validity
of the appellant's guilty pleas.
B. The Conviction on Count Three.
The appellant's next attack is more narrowly focused. He
asseverates that the district court erred in imposing a 300-month
sentence on count three because the sexual assault of G.K.L. did
not "result" from the Morales carjacking. This asseveration rests
on the premise that the district court should have sentenced the
appellant in accordance with section 2119(1), which defines the
crime of simple carjacking and caps sentences at fifteen years,
rather than section 2119(2), which defines the crime of aggravated
carjacking (i.e., carjacking resulting in serious bodily injury)
and caps sentences at twenty-five years.
This argument is beset with problems. Most prominently,
it ignores the decision in Jones v. United States, 526 U.S. 227
(1999), in which the Supreme Court held that section 2119 does not
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define a single crime with a choice of penalties dependent on
sentencing factors but, rather, "establish[es] three separate
offenses [section 2119(1), section 2119(2), and section 2119(3)] by
the specification of distinct elements, each of which must be
charged by indictment, proven beyond a reasonable doubt, and
submitted to a jury for its verdict," id. at 252. Just as the
Jones Court recognized that a defendant found guilty of an offense
under section 2119(1) could not be sentenced under section 2119(2),
see id. at 229, so too we recognize that a defendant who pleads
guilty to a violation of section 2119(2) cannot claim an
entitlement to be sentenced under the more forgiving penalty
provisions of section 2119(1).
This is an important distinction for the purposes of this
case. 18 U.S.C. § 2119 contains three separate sections, defining
three separate crimes (we have not mentioned section 2119(3)
because that provision has no bearing on this case). Inasmuch as
the three sections of 18 U.S.C. § 2119 limn separate offenses, the
appropriate forum for contesting the applicability of any one
section to the facts of a particular case is the guilt phase of the
proceeding — not the sentencing phase.
Here, however, the appellant bypassed that opportunity by
electing to enter an unconditional guilty plea. That plea waived
all non-jurisdictional challenges to the resulting conviction under
section 2119(2), save claims that the plea was not knowing and
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voluntary. See United States v. Rodriguez-Castillo, 350 F.3d 1, 4
(1st Cir. 2003) ("An unconditional guilty plea waives any and all
independent non-jurisdictional claims arising out of alleged errors
antedating the plea."); United States v. Cordero, 42 F.3d 697, 698
(1st Cir. 1994) (observing that "an unconditional guilty plea
insulates virtually all earlier rulings in the case from appellate
review").
The appellant tries to parry this thrust in two different
ways. First, he notes that he did raise a challenge to the
applicability of section 2119(2) in his motion to dismiss count
three. That is true as far as it goes, but it does not go very
far. The appellant failed to preserve the issue for review when he
entered an unconditional guilty plea to count three. He could have
attempted to avail himself of the procedure described in Fed. R.
Crim. P. 11(a)(2), which allows a criminal defendant, with the
consent of the court and the government, to preserve the right to
appeal an adverse determination on a specific pretrial motion by
entering a conditional guilty plea, but he did not do so. Under
these circumstances, his motion to dismiss died a natural death and
he cannot now resurrect it.
The appellant also seeks, albeit somewhat perfunctorily,
to make an end run around the waiver that normally would flow from
the entry of an unconditional guilty plea. The waiver doctrine
does not apply to jurisdictional claims, see Cordero, 42 F.3d at
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699, so the appellant labors to cast his challenge to the
conviction on count three as jurisdictional in nature. He argues,
in effect, that the stipulated facts do not establish a necessary
element of the offense, namely, that the rape resulted from the
carjacking and that, because the admitted conduct does not amount
to a violation of the statute of conviction, the district court
lacked jurisdiction to convict him.
The most gaping hole in this argument is that it cannot
properly be classified as jurisdictional (and, therefore, as
subject to review notwithstanding the appellant's unconditional
guilty plea). In arguing to the contrary, the appellant clings to
United States v. Rosa-Ortiz, 348 F.3d 33 (1st Cir. 2003), in which
we recognized that a "guilty plea does not preclude [a defendant]
from arguing on appeal that the statute of conviction does not
actually proscribe the conduct charged in the indictment," id. at
36. We added that "a federal court has jurisdiction to try
criminal cases only when the information or indictment alleges a
violation of a valid federal law," id. (quoting United States v.
Saade, 652 F.2d 1126, 1134 (1st Cir. 1981)), and that
"jurisdictional challenges to an indictment may be raised at any
time," regardless of the defendant's guilty plea, id.
The case at hand is a horse of a different hue. The
appellant has not argued that the district court lacked authority
to hear the case in the first instance because the indictment
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failed to charge a cognizable federal offense. Nor could such an
argument prevail. Each of the five counts charged crimes within
the competence of the district court; count three charged in plain
terms that a carjacking occurred, which "result[ed] in serious
bodily injury" by reason of the appellant's sexual assault of
G.K.L. That language sufficiently alleged a violation of section
2119(2). This is dispositive of the appellant's argument because,
with few exceptions (none applicable here), "a federal criminal
case is within the subject matter jurisdiction of the district
court if the indictment charges . . . that the defendant committed
a crime described in [a federal criminal statute]." United States
v. González, 311 F.3d 440, 442 (1st Cir. 2002).
Even if the appellant's allegation that the admitted
facts are insufficient as a matter of law to satisfy the "results"
element of aggravated carjacking were accurate — and we doubt that
it is2 — that allegation would not raise a cognizable
jurisdictional defect. In United States v. Valdez-Santana, 279
F.3d 143 (1st Cir. 2002), we rebuffed an attempt to shoehorn what
was, in essence, a contention that admissible evidence could not
establish a violation of the charged crime into the "narrow
exception" that only jurisdictional issues may be appealed
2
This court's precedents interpreting 18 U.S.C. § 2119(2)
strongly suggest that the appellant's rape of G.K.L. falls within
the statutory sweep. See, e.g., United States v. Lowe, 145 F.3d
45, 52-53 (1st Cir. 1998); Vazquez-Rivera, 135 F.3d at 178.
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following an unconditional guilty plea. Id. at 145-46. That
holding followed inexorably from our statement in Cordero, 42 F.3d
at 699, in which we said that "a jurisdictional defect is one that
calls into doubt a court's power to entertain a matter, not one
that merely calls into doubt the sufficiency or quantum of proof
relating to guilt." See also United States v. Cruz-Rivera, 357
F.3d 10, 14 (1st Cir. 2004) (noting that the characterization of
the argument that the factual underpinnings of a guilty plea do not
establish an element of the offense as a jurisdictional challenge
"confuses the constitutional limits on Congress's power with the
jurisdiction of the federal courts"); González, 311 F.3d at 443
(determining that the category of jurisdictional defects that are
not waived by a guilty plea does not include "routine questions as
to the reach and application of a criminal statute" because such
questions have "nothing whatever to do with the subject matter
[jurisdiction] of the federal district court"). These precedents
are controlling here.
To say more on this issue would be to paint the lily. We
find, without serious question, that the appellant's argument that
his admitted conduct does not satisfy the "results" element of
section 2119(2) is not jurisdictional in nature. Consequently,
further consideration of it is foreclosed by the appellant's
unconditional guilty plea.
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C. Alleged Sentencing Errors.
The entry of an unconditional guilty plea does not itself
waive challenges to the ensuing sentence. Sahlin, 399 F.3d at 32.
Here, the appellant advances two such challenges. We consider them
separately.
1. Enhancement for Serious Bodily Harm. The appellant
suggests that the district court erred when it applied a four-level
enhancement to his adjusted offense level on count three. See USSG
§2B3.1(b)(3) (allowing for the disputed enhancement "[i]f any
victim sustained [serious] bodily injury" in the course of the
carjacking). This is too late and too little.
The suggestion is too late because the appellant neither
interposed an objection to the PSI Report (which recommended the
application of the enhancement) nor argued against the enhancement
at sentencing. At best, then, the point has been forfeited, and
review would be limited to plain error. See United States v.
Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).
In this instance, even plain error review is unavailable
because the suggestion is not only too late but also too little.
On appeal, González-Mercado has not offered any developed
argumentation as to why it was error, let alone plain error, for
the sentencing court to apply section 2B3.1(b)(3). This omission
is all the more stark because the appellant admitted below that he
raped G.K.L. while the carjacking was ongoing, that is, while
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retaining control over both the carjacked vehicle and its occupants
(Morales and Berrios).3 This failure must be deemed a waiver.
See, e.g., Muñiz v. Rovira, 373 F.3d 1, 8 (1st Cir. 2004) ("It is
a bedrock appellate rule that issues raised perfunctorily, without
developed argumentation, will not be considered on appeal.");
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (similar).
2. Booker Claim. Before us, the appellant raises for
the first time a challenge to his sentence premised upon the
district court's alleged error in making certain adjustments to the
offense levels used to calculate his sentence under a preponderance
of the evidence standard.4 These include a four-level "grouping"
adjustment, see USSG §3D1.4; a two-level role-in-the-offense
enhancement, see id. §3B1.1(c); the previously discussed four-level
"serious bodily injury" enhancement, see id. §2B3.1(b)(3)(B); and
3
If and to the extent that the appellant intended to rely on
his argument that under 18 U.S.C. § 2119(2) the rape did not result
from the carjacking, see supra Part II(B), his reliance is
misplaced. The applicable guideline does not track the language of
the statute; instead, it covers serious bodily injury to "any
victim." USSG §2B3.1(b)(3). It is hard to conceive of any
interpretation of the phrase "any victim" that would exclude G.K.L.
in the circumstances of this case. Cf. United States v. Hughes,
211 F.3d 676, 691 (1st Cir. 2000) (concluding that the indefinite
reference to "victims" in USSG §2B3.2(c)(1) contemplates all
victims of an extortion scheme, not merely the target of the
extortionate demand).
4
The appellant also claims that the sentencing court made an
impermissible upward departure. This claim is frivolous. The
guideline sentencing range was 360 months to life, and the court
sentenced the appellant within that range.
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a one-level enhancement for amount of loss, see id.
§2B3.1(b)(7)(B).5
The appellant did not object to any of these adjustments
below. In this court, however, he took the position that Blakely
v. Washington, 124 S. Ct. 2531 (2004), prohibited them. Subsequent
to filing his brief, he submitted a letter under Fed. R. App. P.
28(j), in which he augmented this contention with a general
reference to Booker. He concedes that his Blakely/Booker challenge
— for simplicity's sake, we henceforth refer to this as a claim of
Booker error — was not preserved below and that, at most, he is
entitled to plain error review. See United States v. Olano, 507
U.S. 725, 731-32 (1993); United States v. Antonakopoulos, 399 F.3d
68, 76 (1st Cir. 2005).
The plain error test is rigorous. We have stated that:
Review for plain error entails four showings:
(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the
defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or
public reputation of judicial proceedings.
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The
appellant must carry the devoir of persuasion on all four facets of
the test. See Antonakopoulos, 399 F.3d at 77.
5
Some of these adjustments applied to fewer than all of the
counts. For present purposes, however, such differentiations do
not matter.
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In this case, the first two elements present no problem.
There is a Booker error, although it is not any of the alleged
errors that the appellant identifies.6 Booker teaches that the
imposition of sentencing enhancements under a mandatory guidelines
regime is erroneous. See Booker, 125 S. Ct. at 750, 756-57. Thus,
a Booker error has occurred when a sentencing court has treated the
guidelines as mandatory rather than as advisory. As we said in
Antonakopoulos:
The Booker error is that the defendant's
Guidelines sentence was imposed under a
mandatory system. The error is not that a
judge (by a preponderance of the evidence)
determined facts under the Guidelines which
increased a sentence beyond that authorized by
the jury verdict or an admission by the
defendant; the error is only that the judge
did so in a mandatory Guidelines system.
6
Had the district court erred in making the factual findings
underlying these upward adjustments and, as a result, misapplied
guideline enhancements in a way that increased the appellant's
sentence, such errors would require resentencing even under our
pre-Booker precedents. United States v. Serrano-Beauvaix, ___ F.3d
___, ___ (1st Cir. 2005) [No. 02-2286, slip op. at 7]. Here,
however, the appellant does not specifically contest the factual
basis for any of the enhancements, and it appears that the
sentencing court had a solid factual basis for imposing them. The
grouping, leadership role, and serious bodily injury enhancements
were premised on facts that the appellant admitted during the
change-of-plea colloquy and reaffirmed through his acquiescence in
the PSI Report. The remaining enhancement was based upon a finding
that the amount of loss exceeded $10,000 per count. While
admissions of record do not directly cover this point, the
appellant, by his own acknowledgment, carjacked five late-model
vehicles. We think it likely that the value of each vehicle
exceeded $10,000 — and the appellant has not even hinted to the
contrary. Consequently, in a pre-Booker world, there was no plain
error in ordering the upward adjustments.
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399 F.3d at 75. For purposes of this case, the Booker error must
be regarded as plain. See Johnson v. United States, 520 U.S. 461,
468 (1997) (stating that "it is enough that the error be 'plain' at
the time of appellate consideration").
It is at step three of the plain error pavane that the
appellant's argument stumbles. That prong requires a showing that
the error affected substantial rights. Duarte, 246 F.3d at 60. In
regard to unpreserved Booker errors, our main third-prong concern
is with the likelihood that the district court might have sentenced
the defendant more leniently in a post-Booker world in which the
guidelines are only advisory. See United States v. Heldeman, ___
F.3d ___, ___ (1st Cir. 2005) [No. 04-1915, slip op. at 7];
Antonakopoulos, 399 F.3d at 75. The standard is one of "reasonable
probability." Antonakopoulos, 399 F.3d at 78-79.
The appellant has not shown a reasonable probability —
not even a possibility — that the district court would have imposed
a different (more lenient) sentence had it understood that the
sentencing guidelines were advisory rather than mandatory. That is
fatal to his Booker claim. See id. at 75; see also id. at 77
(noting that the defendant bears the burden of persuasion with
regard to the element of prejudice). In this regard, it is
especially significant that, at oral argument — conducted after
this court had handed down its decision in Antonakopoulos — the
appellant's counsel did not advance any viable theory as to how the
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Booker error had prejudiced his client's substantial rights. Nor
does anything in the record suggest a basis for such an inference.
To cinch matters, we note that the guidelines, without
any downward departure, would have allowed the court to impose an
aggregate sentence as low as 360 months for the grouped counts.
The court spurned that option and chose to sentence the appellant
to nearly double that amount of prison time — a total of 600
months. The court explained that a sentence at the low end of the
range would ignore the horrific details of the specific offense
conduct and "depreciate the overall harm to the victims." When,
under a mandatory guidelines regime, a sentencing court has elected
to sentence the defendant substantially above the bottom of the
range, that is a telling indication that the court, if acting under
an advisory guidelines regime, would in all likelihood have imposed
the same sentence. See United States v. Pratt, No. 04-30446, 2005
WL 629824, at *6 (5th Cir. Mar. 18, 2005) (per curiam) (finding
that the district court's imposition of a sentence one year longer
than the minimum required under the guideline range contradicted
the defendant's effort to show a reasonable probability that he
would have received a lower sentence under an advisory guideline
regime); United States v. Lee, 399 F.3d 864, 867 (7th Cir. 2005)
(indicating confidence that defendant's substantial rights were not
affected by the mandatory guideline regime because the district
court had imposed the maximum available sentence).
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The sentence here is reasonable and, for the reasons
stated above, we reject the appellant's request to vacate it on
Booker grounds.
III. CONCLUSION
We need go no further. Discerning no merit in the
appellant's various challenges, we affirm his convictions and
sentence.
Affirmed.
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