[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 22, 2005
No. 04-12694
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 03-20996-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL SANTANA SERRANO-PINERO,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 22, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). We previously affirmed Serrano-Pinero’s
sentence. See United States v. Serrano-Pinero, Case No. 04-12694 (11th Cir.
Nov. 23, 2004) (unpublished). The Supreme Court vacated our prior decision and
remanded the case to us for further consideration in light of Booker.
In his initial brief on direct appeal, Serrano-Pinero argued: (1) the district
court erred in finding he was not entitled to a reduction for a mitigating role, and
(2) the district court erred under Blakely v. Washington, 124 S. Ct. 2531 (2004), by
sentencing him for transporting “one kilogram or more” of heroin because he
never admitted or stipulated to importing an exact amount of heroin. On
reconsideration, we reinstate our opinion as to the mitigating role issue and
consider the Booker claim only.
Because Serrano-Pinero did not raise a Blakely or Booker objection in the
district court, his Booker claim should be reviewed under the plain error standard.
See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
An appellate court may not correct an error 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.
2
Id. (internal quotations and citation omitted). We have clarified there are two
types of Booker error: (1) Sixth Amendment, or constitutional, error based upon
sentencing enhancements imposed under a mandatory Guidelines system neither
admitted by the defendant nor submitted to a jury and proven beyond a reasonable
doubt; and (2) statutory error based upon sentencing under a mandatory
Guidelines system. United States v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir.
2005).
There is a dispute between the parties regarding whether Serrano-Pinero
admitted to the drug quantity used in his Guidelines sentence. Even assuming that
Serrano-Pinero did not admit to the drug quantity, both his Booker constitutional
and statutory claims fail because Serrano-Pinero cannot meet the third prong of the
plain-error test. There is not “a reasonable probability of a different result if the
[G]uidelines had been applied in an advisory instead of binding fashion by the
sentencing judge in this case.” See Shelton, 400 F.3d at 1332; Rodriguez, 398
F.3d at 1301. Although the district court sentenced Serrano-Pinero at the low end
of his Guidelines range, that is not enough to show the district court would have
imposed a different sentence under an advisory regime. See United States v.
Fields, 408 F.3d 1356, 1361 (11th Cir. 2005). There is nothing in the record
indicating the district court would have imposed a different sentence if the
3
Guidelines would have been treated as advisory. Thus, the district court did not
commit Booker plain error, either constitutional or statutory, and we affirm
Serrano-Pinero’s sentence.
OPINION REINSTATED IN PART; AFFIRMED IN PART.
4