[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-12515 June 8, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D.C. Docket No. 03-20949-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM STERLING,
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 TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.
PER CURIAM:
William Acevedo Sterling pleaded guilty to conspiracy to possess with
intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§ 846. At sentencing, the district court denied a minor-role reduction under
U.S.S.G. § 3B1.2, finding that Sterling was held responsible only for the amount
of drugs with which he was involved, and that he was a trusted member of an on-
going conspiracy, and sentenced Sterling to eighty-seven months imprisonment to
be followed by three years supervised release. Sterling appealed, raising two
issues: (1) his sentence is unconstitutional under Blakely v. Washington, 124 S.Ct.
2531 (2004); and (2) the district court clearly erred by denying a reduction for role
in the offense.
After this court affirmed Sterling’s sentence, the U.S. Supreme Court
vacated our opinion and remanded in light of United States v. Booker, 543 U.S. –
(2005).
Upon reconsideration, we conclude that Sterling cannot show plain error in
the imposition of his sentence.1 See United States v. Rodriguez, 398 F.3d 1291
(11th Cir.), petition for cert. filed, No. 04-1148 (Feb. 23, 2005) (acknowledging
that a Booker error was plain, but holding that, in order to show that his
1
Because Sterling did not raise a Booker challenge before the district court, our review is
for plain error. United States v. Rodriguez, 398 F.3d 1291 (11th Cir.), petition for cert. filed, No.
04-1148 (Feb. 23, 2005).
2
substantial rights were affected under plain error review, the appellant must show
that his sentence would have been different but for the court’s use of the
mandatory guidelines). Here, there is no evidence in the record to show that
Sterling’s sentence would have been different but for the mandatory guidelines.
See id.; see also United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005) (finding
error that affected substantial rights when the district court stated that the sentence
was “too severe,” “unfortunate,” and a sentence at the low end was “more than
appropriate”). Accordingly, we AFFIRM the district court.
3