[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 26, 2005
No. 04-16140 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00077-CR-T-26MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL ANTONIO SANCHEZ ALVARADO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 26, 2005)
Before BIRCH, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Raul Antonio Sanchez Alvarado appeals his 135-month sentence imposed
after he pled guilty to one count of conspiracy to possess with intent to distribute
five kilograms of cocaine while on board a vessel subject to the jurisdiction of the
United States. Alvarado appeals his sentence on United States v. Booker, 542 U.S.
___, 125 S. Ct. 738 (2005), grounds, arguing that the district court erred when it
sentenced him under a mandatory guidelines scheme based on facts not found by a
jury or admitted by him. We AFFIRM.
I. BACKGROUND
According to the Presentence Investigation Report (“PSI”), in February of
2004, several individuals on a fishing vessel bearing the Colombian flag and
named “Don Isaac,” departed from Colombia, South America with the intention of
smuggling a load of cocaine. On or about 21 February 2004, a United States
aircraft on patrol spotted the Don Isaac approximately 432 nautical miles south of
Acapulco, Mexico. Based on intelligence from other agents, a United States Coast
Guard cutter, “Midget,” intercepted and boarded the Don Isaac. In accordance
with a bilateral agreement with the Colombian government, law enforcement
agents searched the Don Isaac and found 214 bales of cocaine – weighing a total of
4,853 kilograms – concealed in a hidden compartment. Based upon a coordinate
found on board the Don Isaac, as well as communications overheard on several
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radio frequencies, the agents concluded that the Don Isaac was on its way to its
drop-off point.
Near the suspected drop-off point, a helicopter crew spotted two "go-fast"
vessels, each with three crew members and traveling at a high rate of speed. After
the vessels were stopped, a boarding crew identified one of the crew members as
Raul Antonio Sanchez Alvarado. All of the crew members of the go-fasts were
Mexican nationals who had traveled from Mexico to meet the Don Isaac’s crew
and receive the bales of cocaine. Alvarado and all of the other Go-Fast crew
members had cocaine residue on their skin or clothing.
Alvarado was subsequently one of fourteen men named in a two-count
indictment returned in the Middle District of Florida on 25 February 2004.
Alvarado and the others were charged with conspiracy to possess with intent to
distribute five kilograms or more of cocaine while on board a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. §§ 1903 (a), (g), and (j)
and 21 U.S.C. § 960(b)(1)(B)(ii) (count 1), and possession with intent to distribute
five kilograms or more of cocaine while on board a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. §§ 1903 (a) and (g), 18
U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii) (count 2). The indictment also
included a forfeiture provision.
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Alvarado agreed to plead guilty to count one of the indictment, and in
exchange, the government promised to move for the dismissal of count two at
sentencing. Alvarado's plea was subsequently accepted, and he was adjudged
guilty.
The PSI calculated a base offense level of 38, a two-level decrease for
meeting the safety valve provisions, a two-level reduction for acceptance of
responsibility, and a one-level reduction in anticipation of the government filing a
substantial assistance motion, for a total offense level of 33. Alvarado's criminal
history category was I, and the PSI recommended a sentence between 135 to 168
month of imprisonment. Alvarado did not object to any of the PSI's calculations.
At sentencing, Alvarado made use of an interpreter and acknowledged that
he had pled guilty to count one of the indictment. Even though Alvarado had not
objected to the PSI's failure to recommend a minor-role reduction, the district court
stated for the record that it would have overruled any such objection, in light of the
quantity of cocaine involved. When asked if he had any Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004), objections, Alvarado’s counsel replied that
he had “only . . . one guideline provision . . . which is drug quantity which we
stipulated at the time of the plea.” To clarify, the court noted that Alvarado’s plea
agreement was “open,” and made sure this meant he preserved the right to appeal
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the sentence imposed. Id. at 7. The court then noted that, to his credit, Alvarado
was the only one on a go-fast boat to “plead guilty and acknowledge his
responsibility.” Id. Admitting that he had been less than totally forthcoming in
some way, and thus, did not deserve the § 5K1.1 motion, Alvarado still sought to
be sentenced at the low end of the range, to which the government did not object.
The court found that the low end was appropriate and subsequently sentenced
Alvarado to 135 months in prison and five years of supervised release. Alvarado
raised no objections to the sentence imposed.
II. DISCUSSION
Because Alvarado failed to raise a constitutional challenge to his sentence in
the district court, we review his claim only for plain error. See United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied, ___ U.S. ___, 125
S. Ct. 2935 (2005). Under plain error review,
[a]n appellate court may not correct an error [that] the defendant failed to
raise in the district court unless there is: “(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
the judicial proceedings.”
Id. (internal citation omitted).
In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2534-38 (2004),
the Supreme Court held that the imposition of a sentencing enhancement based
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upon facts neither admitted by the defendant nor found by the jury, under the State
of Washington’s mandatory guidelines system, violated the defendant’s Sixth
Amendment right to a jury trial. In Booker, the Supreme Court held that the Sixth
Amendment as construed in Blakely applies to the Federal Sentencing Guidelines.
Id., 125 S. Ct. at 746. To cure the Sixth Amendment violation, the Supreme Court
excised the two parts of the Sentencing Reform Act that rendered the guidelines
system mandatory, and thus, unconstitutional – 18 U.S.C. § 3553(b)(1) (making
the guidelines binding on the district court) and 18 U.S.C. § 3742(e) (requiring de
novo review of sentences on appeal). Id., 125 S. Ct. at 764. The Supreme Court
made clear, however, that “[t]he district courts, while not bound to apply the
Guidelines, must consult those Guidelines and take them into account when
sentencing.” Id., 125 S.Ct. at 767.
Since Booker, we have held that there are two possible Booker errors.
Statutory error arises from the district court’s application of a mandatory – rather
than advisory – sentencing scheme, while constitutional error arises only where
judge-found facts increase a defendant’s sentence under that mandatory scheme.
See United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005); see also
Rodriguez, 398 F.3d at 1298 (noting that a defendant’s Sixth Amendment right to a
jury trial is violated “where under a mandatory guidelines system a sentence is
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increased because of an enhancement based on facts found by the judge that were
neither admitted by the defendant nor found by the jury.”).
Here, there was statutory error because the district court imposed a
mandatory sentencing scheme. Shelton, 400 F.3d at 1330. Alvarado, however,
stipulated to the drug quantity that determined his sentence; it was not a
judge-found fact. Because of this, and because he was not sentenced beyond the
applicable statutory maximum of life imprisonment, there was no constitutional
Booker error. See Shelton, 400 F.3d at 1330 (finding no error where the defendant
admitted drug quantity in the plea agreement and did not object to the factual
findings in the PSI). Nevertheless, the statutory error satisfies the first two prongs
of the plain error test.
Next, Alvarado must demonstrate that the error violated his substantial
rights. Rodriguez, 398 F.3d at 1298. Rodriguez announced a test for substantial
rights violations and stated that the defendant must show a “reasonable
probability” that he would have received a lesser sentence if the guidelines were
applied in an advisory fashion. Id. at 1299.
Here, however, the district court explicitly noted that it would have
overruled any objection Alvarado may have made to the denial of a minor-role
reduction. Moreover, even though Alvarado was sentenced at the bottom of the
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applicable range, this alone will not create a reasonable probability that he would
have received a lesser sentence under an advisory sentencing scheme. See United
States v. Fields, 408 F.3d 1356, 1360-61 (11th Cir. 2005). Finally, the district
court did not announce any alternate sentence and made no indication that it would
have sentenced Alvarado differently under different circumstances. Thus, because
Alvarado cannot show that his sentence would likely have been less if the
guidelines were not mandatory, he cannot show that his substantial rights were
affected when the district court sentenced him under a mandatory system.
Therefore, he cannot satisfy the plain error test.
III. CONCLUSION
Alvarado appeals his 135-month sentence and argues that the district court
committed a Booker error when it sentenced him under a mandatory guidelines
scheme based on facts not found by a jury or admitted by him. As we have
explained, Alvarado cannot show that the district court committed plain error
during sentencing. Accordingly, we AFFIRM.
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