[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 30, 2005
No. 05-10690 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80114-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN H. MCCALLUM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 30, 2005)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Benjamin H. McCallum was sentenced to 51 months imprisonment for bank
robbery and attempted bank robbery, both in violation of 18 U.S.C. § 2113(a). On
appeal, McCallum contends that the district court committed clear error under
United States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005), by sentencing him
under the mandatory scheme of the sentencing guidelines.
Notwithstanding his assertions to the contrary, McCallum failed to preserve
his Booker claim for appeal. The record indicates that the district court solicited
objections to the sentence imposed and that McCallum stated that he did not have
any objections. Furthermore, during the plea hearing, the court recognized there
was “a lot of uncertainty” concerning the constitutionality of the sentencing
guidelines. The court asked McCallum whether his attorney had tried to explain
the circumstances to him and McCallum replied that he had. Despite virtually
being prompted, McCallum did not object to the constitutionality of his guideline
sentence. Instead, seven days later he filed a Fed. R. Crim. P. 35(a) motion to
correct sentence. McCallum now contends that his Rule 35(a) motion preserved
the error for appeal and that he is entitled to re-sentencing. Rule 35(a) motions are
reserved for “arithmetical, technical, or other clear error.” See Fed. R. Crim. P.
35(a). Since Booker error does not fall into any of these categories, McCallum’s
claim was not preserved.
McCallum does not contend that he is entitled to re-sentencing under the
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plain error standard that actually applies to cases of unpreserved error, such as this
one, see United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert.
denied, 125 S. Ct. 2935 (2005), and we can understand the absence of this
argument. McCallum cannot meet the third prong of the plain error standard,
because he cannot show a reasonable probability of a different result if he had been
sentenced under an advisory regime. See id. at 1299-1300. In any event,
McCallum does not argue that. For these reasons, we affirm his sentence.
AFFIRMED.
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