[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 16, 2005
No. 04-12665 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-00019-CR-2-JTC-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON EDWARD STEVENS,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(August 16, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before ANDERSON, BLACK and PRYOR, 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 Stevens’ sentence. See
United States v. Stevens, Case No. 04-12665 (11th Cir. Dec. 29, 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(unpublished).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, Stevens asserted: (1) the district court
erred when it found he possessed a firearm during the robbery and enhanced his
sentence accordingly, and (2) in light of Blakely v. Washington, 124 S. Ct. 2531
(2004), his sentence should not have been enhanced based on facts found by the
sentencing judge. On reconsideration, we reinstate our opinion as to the
possession of firearm enhancement and consider the Booker claim only.
Because Stevens 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.
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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).
Stevens meets the first two prongs of the plain-error test for Sixth
Amendment error because his sentence was enhanced, under a mandatory
Guidelines system, based on facts neither admitted by him or found by a jury.
Rodriguez, 398 F.3d at 1298–99. However, Stevens 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 id. at 1301. Although the district court
sentenced Stevens 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 Guidelines would have been treated as advisory. Thus,
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the district court did not commit Booker constitutional plain error, by enhancing
Stevens’ sentence based on facts neither admitted by him nor found by a jury.
Stevens also meets the first two prongs of the plain error test for statutory
error because he was sentenced under a mandatory Guidelines system. See
Shelton, 400 F.3d at 1330–31. However, again, Stevens cannot meet the third
prong because 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 id. at 1332 (quoting Rodriguez, 398 F.3d at
1301). Thus, the district court did not commit Booker statutory plain error by
sentencing Stevens under a mandatory Guidelines regime. We affirm Stevens’
sentence.
OPINION REINSTATED IN PART; AFFIRMED IN PART.
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