[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-11228 ELEVENTH CIRCUIT
JULY 7, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 03-00046-CR-1-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESSIE HANNA,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 7, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
This case comes before the Court for consideration in light of United States
v. Booker, __ U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). We previously
affirmed Appellant's sentence. See United States v. Hanna, 125 Fed.Appx. 270
(11th Cir.2004) (unpublished). The Supreme Court vacated our prior decision and
remanded the case to us for further consideration in light of Booker. Appellant
Jessie Hanna appeals her 15-month sentence for (1) conspiring to possess with
intent to distribute marijuana, in violation of 21 U.S.C. §§ 841 (a)(1), 841
(b)(1)(D), and 846 (Count 1); and (2) possession of counterfeit federal reserve
notes, in violation of 18 U.S.C. §§ 472 and 2 (Count 3). For the reasons that
follow, we affirm Hanna’s sentences.
In United States v. Booker, 543 U.S. __, 125 S. Ct. 738, 757,160 L. Ed. 621
(2005), the Supreme Court held use of the Federal Sentencing Guidelines must be
advisory only. Hanna readily admits that she did not raise any objection in the
district court under Apprendi, Blakely, or the Sixth Amendment. Because Hanna
was sentencing pursuant to the then-mandatory guidelines scheme, and she raised
no objection to the sentencing below, the plain error standard is applicable to this
case. United States v. Shelton, 400 F.3d 1325, 1328 (11th Cir. 2005) (applying
plain error review to statutory Booker error). Hanna argues that the district court
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plainly erred by imposing a sentence pursuant to the then-mandatory Federal
Sentencing Guidelines.
There is no dispute that the first two prongs of the plain error test satisfied
here. See Shelton, 400 F.3d at 1330-31 (noting that the first two prongs require
“error” that is “plain” and sentencing pursuant to the then-mandatory guidelines
scheme satisfies these prongs, even without the presence of a Sixth Amendment
violation). With regard to the third prong of the plain error test, the defendant
must establish “that the plain error affects his substantial rights.” Shelton, 400
F.3d at 1331 (quotation omitted). The defendant must demonstrate “‘a reasonable
probability of a different result if the guidelines had been applied in an advisory
instead of binding fashion by the sentencing judge.’” United States v. Fields, __
F.3d __, 2005 WL 1131778, at * 3, No. 04-12486 (11th Cir. May 16, 2005)
(quoting United States v. Rodriguez, 398 F.3d 1291, 1302 (11th Cir. 2005), pet’n
cert. denied (U.S. June 20, 2005) (No. 04-1148)). The third prong requires the
defendant to show that the plain error “seriously “affect[ed] the fairness, integrity
or public reputation of judicial proceedings.” Rodriguez, 398 F.3d at 1298
(quotation omitted).
While the district court sentenced Hanna, a 19 year old college student with
no prior criminal record, at the bottom of the Guideline range, this fact alone does
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not carry the defendant’s burden to show that the error affected her substantial
rights. See United States v. Fields, __ F.3d __, 2005 WL 1131778, at * 4 (holding
that appellant’s sentence at the bottom of the Guideline range alone was not
enough to satisfy third prong of the plain error test). Instead, “the fact that the
district court sentenced the defendant to the bottom of the applicable guidelines
range establishes only that the court felt that the sentence was appropriate under
the mandatory guidelines system[;] [i]t does not establish a reasonable probability
that the court would have imposed a lesser sentence under an advisory regime.”
Id. Hanna argues that the sentence at the bottom of the Guideline range in
addition to the district court’s grant of a two-level reduction for minor role,
Hanna’s release on unsecured bond on the day of her arrest, and the court’s
acknowledgment of Hanna’s eligibility for the Intensive Confinement Center
Program and halfway house demonstrates that the district court would have
imposed a lesser sentence under an advisory guideline’s scheme.
Although the district court sentenced Hanna at the bottom of the Guidelines
range and gave Hanna a more lenient sentence than it could have under the then-
mandatory Guidelines, to say that the above accommodations by the district court
“establish a reasonable probability that the court would have imposed a lesser
sentence under an advisory regime” would be mere speculation. See United
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States v. Fields, __ F.3d __, 2005 WL 1131778, at * 4. “[T]he fact that the
district court went as low as it could under the mandatory guidelines system,
without more, is not enough to carry that burden.” Id.
Because Hanna cannot satisfy the plain error test, we affirm Hanna’s
sentence.
AFFIRMED.
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