[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 17, 2005
No. 03-12849 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00203-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NURY DEJESUS ARBELAEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 17, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before ANDERSON, CARNES and HULL, Circuit Judges.
PER CURIAM:
We previously affirmed the conviction in this case. See United States v.
Arbelaez, No. 02-00203 (11th Cir. June 4, 2004). The Supreme Court has vacated
our prior judgment and remanded the case to us for further consideration in light of
Booker v. United States, 543 U.S. __, 125 S.Ct. 738 (2005). Having reconsidered our
decision pursuant to the Supreme Court's instructions, we reinstate our judgment
affirming the conviction and affirm the sentence.
In Booker, the Supreme Court did two things: first, following Blakely v.
Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), it held that sentence
enhancements based solely on judicially found facts pursuant to the mandatory
Federal Sentencing Guidelines violated the Sixth Amendment; and second, it
rendered the guidelines effectively advisory in order to comport with the Sixth
Amendment by excising those provisions of the statute that made the guidelines
mandatory. Id. at ___,125 S.Ct. at 749-51, 764.
Arbelaez argues that the district court erred by applying a mandatory guideline
sentence. In her initial brief on appeal, Arbelaez argued that the district court
violated the doctrine of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000) by failing to providing a specific breakdown of drug quantity on the jury form,
and only submitting the question of whether the amount of cocaine involved in her
offense was over or under 5 kilograms. She did not raise this challenge or any
challenge to the constitutionality of her sentence in the district court. Accordingly,
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we review for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir. 2005) (stating that because defendant did not raise a Sixth Amendment challenge
in the district court, our review is only for plain error).
In United States v. Rodriguez, we applied plain error analysis to a claim that
the defendant's sentence violated his Fifth and Sixth Amendment rights in light of
Booker because it was based on a judge's finding of facts that were neither charged
in an indictment nor proven to a jury. 398 F.3d 1291(11th Cir. 2005). The Rodriguez
opinion stated that a sentence enhancement based on a fact, other than a prior
conviction, found solely by the judge in a mandatory guideline system met the first
and second prongs of the plain error test. Id. at 1298-99. The court stated that the
error was not that there were "extra-verdict enhancements" that led to an increase in
the defendant's sentence, but rather that those enhancements were applied in a
mandatory guideline system. Id. at 1300.
Applying the third prong, the court in Rodriguez then asked "[w]hether there
is a reasonable probability of a different result if the guidelines had been applied in
an advisory instead of binding fashion by the sentencing judge in this case." Id. at
1301. Emphasizing that the defendant bore the burden of persuasion with respect to
prejudice, the court in Rodriguez found that the defendant could not meet his burden
because the record provided no indication that it was any more likely that the error
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– applying the Guidelines as mandatory as opposed to advisory – resulted in a greater
sentence rather than a lesser one. Id. at 1301. In other words, the defendant could not
show that the error "affected his substantial rights" because he could not show that
it worked to his disadvantage rather than to his advantage.
Similarly, Arbelaez cannot show that the Booker error in this case affected her
substantial rights by resulting in a greater sentence because she cannot point to
anything indicating that the judge would have imposed a lesser sentence in an
advisory system.1 Indeed, the judge sentenced Arbelaez at the high end of the
guideline range, which indicates that Arbelaez would not receive a lesser sentence in
the advisory system.
For the foregoing reasons, we reinstate our opinion affirming her conviction
and affirm her sentence.
AFFIRMED.
1
Nothing in Booker undermines the legitimacy of Arbelaez' conviction because
Booker only addresses the sentencing phase.
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