[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-11569 ELEVENTH CIRCUIT
June 8, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-60131-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENE A. SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 8, 2005)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BIRCH, DUBINA 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, __ U.S. __ , 125 S. Ct. 738 (2005). See United States v.
Smith, No. 04-11569 (11th Cir. Oct. 22, 2004), vacated, No. 04-8309 (April 11,
2005).
Gene Smith was charged with conspiracy to furnish to another a false, forged,
and counterfeit United States passport in violation of 18 U.S.C. § 371 (Count 1), and
knowing and willful possession, with intent to use and transfer unlawfully, counterfeit
birth certificates and Social Security cards in violation of 18 U.S.C. § 1028 (Count
2). Pursuant to a written plea agreement, Smith pleaded guilty to Count 2 of the
indictment. Following a sentencing hearing, Smith was sentenced to a term of 21
months’ imprisonment.
Smith’s initial brief on direct appeal raised only one issue: whether, pursuant
to Blakely v. Washington, 124 S. Ct. 2531 (2004), her sentence constituted a violation
of her Sixth Amendment right to have a jury determine beyond a reasonable doubt all
the facts upon which her sentence was based. We affirmed Smith’s conviction and
sentence, finding that Smith could not establish plain error pursuant to United States
v. Reese, 382 F.3d 1308 (11th Cir. 2004). United States v. Smith, No. 04-11569 (11th
2
Cir. Oct. 22, 2004). After the Supreme Court decided Booker, the Court vacated the
judgment of this court and remanded the case for reconsideration.
On remand, we directed the parties to submit supplemental briefs specifically
addressing: (1) 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. The parties agree that Smith timely challenged her
sentence by asserting a constitutional claim in her initial brief before this court. See
United States v. Levy, 379 F.3d 1241, 1242 (11th Cir.), reh’g en banc denied, 391
F.3d 1327 (11th Cir. 2004) (holding that an issue is waived if not in an initial brief).
However, in the district court Smith never raised a constitutional challenge to the
Sentencing Guidelines prior to, during, or after trial or sentencing. Accordingly, we
review her Sixth Amendment Booker argument only for plain error. United States v.
Rodriguez, 398 F.3d 1291 (11th Cir. 2005).
Smith now asks this court to vacate her sentence and remand for resentencing,
contending there was both constitutional and statutory error under Booker. The
Government contends, however, that Smith cannot meet her burden to establish plain
error. We agree.
Under plain error review, Smith bears the burden of establishing (1) error, (2)
that is plain, which (3) affects her substantial rights. Id. at 1298. If these three
3
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. Although we believe Smith has satisfied the first two
prongs of the plain error test, she cannot show that any error affected her substantial
rights. In order to do so, Smith cannot rely on speculation that the judge might have
imposed a different sentence, or that she might fare better on remand. Id. at 1301.
Rather, she must demonstrate “a reasonable probability that if the district court had
considered the guidelines range it arrived at using extra-verdict enhancements as
merely advisory, instead of mandatory, and had taken into account any otherwise
unconsidered § 3553 factors, the court would have imposed a lesser sentence than it
did.” Id. at 1302.
Nothing in the record supports such a conclusion here. In fact, the record
suggests that the court below was inclined to give Smith a longer sentence than the
one imposed, and that the court considered Smith’s sentence at the high end of the
guideline range a lenient one. (R.3 at 137, 158, 161, 163-64.) We find no plain error,
and our previous decision affirming Defendant’s conviction and sentence is,
therefore, reinstated.
JUDGMENT AFFIRMING CONVICTION AND SENTENCE REINSTATED.
4