[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ June 9, 2005
THOMAS K. KAHN
No. 04-12320 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 04-20019-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOEL OSVALDO NIEVES-BOGADO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 9, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before ANDERSON, BLACK and HULL, Circuit Judges.
PER CURIAM:
I. BACKGROUND
Noel Osvaldo Nieves-Bogado pled guilty to importation of one kilogram or
more of heroin, in violation of 21 U.S.C. §§ 952(a) and 960(b)(1). During the
Rule 11 colloquy, the district court explained: (1) the various rights that Nieves-
Bogado would be relinquishing by pleading guilty; (2) that the district court at
sentencing would decide the exact weight of the drugs and whether the weight was
a little bit above or below one kilogram; and (3) that Nieves-Bogado was pleading
guilty to “right around one kilogram.”
The PSI stated that the weight of the drugs was 1.095 kilograms and that it
triggered a mandatory minimum sentence of 10 years’ imprisonment. In response
to the PSI , Nieves-Bogado objected to the calculation of the drugs, stating that
“the government has . . . no evidence of this exact weight.”
At sentencing, the government called as a witness the DEA agent who
performed the laboratory tests on drug pellets that Nieves-Bogado passed at the
hospital after his arrest at the Miami airport. The DEA agent testified in detail
about how he calculated the drug weight using extrapolation. Extrapolation
involves weighing randomly selected pellets, and projecting the total weight of the
pellets at issue based on the weight of the samples. The district court made a fact-
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finding that, based on the DEA agent’s testimony, the correct weight of the drugs
was 1.095 kilograms.
Nieves-Bogado objected to the district court’s fact-finding and to the district
court’s reliance on the DEA agent’s testimony. However, Nieves-Bogado did not
raise any constitutional claim to a jury trial on drug quantity, and Nieves-Bogado
did not raise any constitutional issue pursuant to Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348 (2000).
Because Nieves-Bogado met the criteria for the safety valve provision, see
18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, he was eligible for a sentence in
accordance with the applicable Guidelines without regard to the statutory
minimum of ten years. After making sentencing reductions, the district court
adopted the findings of fact in the PSI, determined that Nieves-Bogado’s
Guidelines range was 70-87 months’ imprisonment, and sentenced Nieves-Bogado
to 84 months’ (seven years) imprisonment.
In his prior direct appeal, Nieves-Bogado argued for the first time that, as to
his sentence, he was entitled to have the drug quantity amount for sentencing
purposes determined by a jury beyond a reasonable doubt pursuant to Blakely v.
Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). Applying plain-error review,
this Court concluded in an unpublished opinion that because the circuits were split
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at the time, it was not obvious that Blakely required a jury determination of drug
quantity for purposes of application of the Guidelines. United States v. Nieves-
Bogado, No. 04-12320, at 8 (11th Cir. Dec. 16, 2004).1
Nieves-Bogado filed a petition for a writ of certiorari in the United States
Supreme Court. On April 22, 2005, the Supreme Court vacated our December 16,
2004 judgment and remanded his case to this Court for further consideration in
light of United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).
II. DISCUSSION
Because Nieves-Bogado did not raise any constitutional issues in the district
court based on Apprendi, Blakely, or Booker, our review is only for plain error.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), petition for cert.
filed, 73 U.S.L.W. 3531 (Feb. 23, 2005).2
In Booker, a majority of the Supreme Court concluded that the mandatory
nature of the Guidelines made them incompatible with the Sixth Amendment’s
1
Nieves-Bogado also raised an issue with respect to his guilty plea, and this Court
affirmed Nieves-Bogado’s conviction. United States v. Nieves-Bogado, No. 04-12320, at 17
(11th Cir. Dec. 16, 2004). Nieves-Bogado’s conviction is not at issue on this remand.
2
To establish plain error, the defendant must show “‘(1) error, (2) that is plain, and (3)
that affects substantial rights.’” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.
2005) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002)). “‘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 judicial proceedings.’” Id. (quoting Cotton, 535 U.S. at 631, 122 S. Ct. at 1785).
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guaranty of the right to a jury trial where “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by
the facts established by a plea of guity or a jury verdict [was not] admitted by the
defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at
756. As explained in Rodriguez, 398 F.3d at 1301, “[t]he constitutional error is
the use of extra-verdict enhancements to reach a guidelines result that is binding
on the sentencing judge; the error is the mandatory nature of the guidelines once
the guidelines range has been determined.”
We first conclude that the DEA agent’s testimony at sentencing constituted
sufficient evidence to support the district court’s fact-finding as to drug quantity,
and the district court correctly determined the proper Guidelines range for Nieves-
Bogado’s conviction is 70-87 months’ imprisonment. Nonetheless, Nieves-
Bogado’s Sixth Amendment rights were violated because his sentence was
enhanced, under a mandatory Guidelines system, based on facts not found by a
jury or admitted by Nieves-Bogado. The Sixth Amendment violation stemmed not
from the district court’s extra-verdict enhancement, but from the district court’s
use of that extra-verdict enhancement in sentencing Nieves-Bogado under a
mandatory Guidelines scheme. Rodriguez, 398 F.3d at 1301. Because Nieves-
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Bogado has shown a Sixth Amendment violation, Nieves-Bogado has met the first
two prongs of plain error review: error that is plain. Id. at 1298-99.
However, Nieves-Bogado has failed to establish that any Booker error
affected his substantial rights. Rodriguez, 398 F.3d at 1301. In this case, the
sentencing record provides no basis for a conclusion that Nieves-Bogado has
shown a reasonable probability of a more lenient sentence under an advisory
Guidelines regime. In fact, the district court refused to sentence Nieves-Bogado at
the low end of the Guidelines range of 70-87 months’ imprisonment. Instead, the
district court sentenced Nieves-Bogado to 84 months’ imprisonment, which is in
the middle of the Guidelines range. Thus, we conclude that Nieves-Bogado has
not satisfied the third prong of plain-error review.
Accordingly, we reinstate all of our December 16, 2004 opinion affirming
Nieves-Bogado’s conviction. Further, we affirm Nieves-Bogado’s sentence for
the reasons stated above.
SENTENCE AFFIRMED; OPINION REINSTATED IN PART.
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