[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-10461 ELEVENTH CIRCUIT
July 15, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-20682-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR JOSEPH PINARGOTE-RAMIREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 15, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before MARCUS, PRYOR and COX, Circuit Judges.
PER CURIAM:
This case is before us following the Supreme Court’s order vacating the
judgment of this court and remanding the case for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). Pinargote-Ramirez v. United States,
125 S. Ct. 1741 (2005).
Following remand, we entered an order directing the parties to submit
supplemental letter briefs specifically addressing: (1) a description of where, when,
and how any Booker issue was first raised; and (2) any argument about whether and
how the Booker decision applies to the present case, and what action the court should
take.
Pinargote asserts that a Booker issue was first raised in his initial brief before
this court in which he argued that the district court “denied the defendant the
individualized, discretionary sentencing upon which the constitutionality of the
guidelines, under the Fifth Amendment, depends.” Appellant’s Br. at 6. Pinargote
does not contend that he raised any such issue before the district court, and he
concedes that under United States v. Fields, No. 04-12486, __ F.3d __ (11th Cir.
2005), “the mere fact that Pinargote received a guideline-minimum sentence is
insufficient to meet his plain error burden.” Appellant’s Supp. Letter Br. at 5.
The Government argues that Pinargote did not properly preserve any Booker
argument before this court or the district court. The Government’s position is that the
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argument raised in his initial brief was designed to attack the district court’s
application of the minor role guideline, but did not adequately raise any sentencing
issues or constitutional objections involving the Fifth or Sixth Amendment in relation
to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), or the district
court’s authority to engage in fact-finding. And, in any event, because no Booker
issue was raised before the district court, our review would only be for plain error.
We agree with the Government that because Pinargote raised no Booker issue
before the district court our review is only for plain error. See United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain error review,
Pinargote bears the burden of establishing (1) error, (2) that is plain, which (3) affects
his substantial rights. Id. If these three conditions are met, the court may exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id. Though Pinargote
can likely satisfy the first two prongs of this test, see Johnson v. United States, 520
U.S. 461, 468, 117 S. Ct. 1544, 1549 (1997), he cannot demonstrate that any error
affected his substantial rights because he cannot point to anything in the record which
shows that he would have received a different sentence but for the mandatory nature
of the guidelines. See Rodriguez, 398 F.3d at 1301. Our previous decision affirming
Defendant’s conviction and sentence is, therefore, reinstated.
JUDGMENT AFFIRMING CONVICTION AND SENTENCE REINSTATED.
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