[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 7, 2005
No. 04-11700 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00428-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MANUEL CABEZAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 7, 2005)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Jose Manuel Cabezas appeals his 135-month sentence and conviction for
possession with intent to distribute 5 or more grams of cocaine in violation of 21
U.S.C. § 960(b)(1)(B)(ii) and the Maritime Drug Law Enforcement Act (MDLEA),
46 U.S.C. App. § 1903. First, Cabezas argues that the sentencing judge committed
plain error by considering the Federal Guidelines to be mandatory and making
enhancements based on judicial fact-finding in light of United States v. Booker,
543 U.S.___, 125 S. Ct. 738 (2005). Second, he argues that the district court erred
when it enhanced his sentence under U.S.S.G. § 2D1.1(b)(2)(B) for being a
“captain” of the drug-carrying vessel. Lastly, Cabezas argues that the MDLEA is
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000,) because it incorporates by reference the penalty provisions of
21 U.S.C. § 960 and allows a judge to decide “sentencing factors” that are more
properly submitted to a jury.
I. Cabezas’ Booker Challenge
Cabezas failed to object to judicial fact-finding used to enhance his sentence
or to the mandatory application of the sentencing guidelines in the district court. In
his initial brief on appeal, Cabezas alleged that his sentence was unconstitutional in
light of the Supreme Court’s opinion in Blakely v. Washington, 542 U.S. ___, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004).1 Accordingly, we review for plain error. See
United States v. Dowling, 403 F.3d 1242, 1245-47 (11th Cir. 2005) (explaining
1
Because Booker was decided after briefing in this case was completed, we
requested and received supplemental briefing on Cabezas' Booker claim.
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what is required to preserve a Booker error and reviewing the defendant’s claim for
plain error because it was first raised in the initial brief on appeal).
We have discretion to correct an error under the plain error standard where
(1) an error occurred, (2) the error was plain, (3) the error affected substantial
rights, and (4) the error seriously affects the fairness, integrity or public reputation
of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-36, 113 S. Ct.
1770, 1777-79 (1993).
In United States v. Booker, 542 U.S. __, 125 S. Ct. 738 (2005), the Supreme
Court announced that sentencing enhancements made pursuant to mandatory
Federal Sentencing Guidelines and based on judicially found facts violated the
Sixth Amendment. Id. at ___, 125 S. Ct. at 747-50. Accordingly, the Court struck
the statute provisions making the Federal Sentencing Guidelines mandatory, and
rendered the guidelines effectively advisory. Id. at ___, 125 S.Ct at 756-57.
In United States v. Rodriguez, 398 F.3d 1291(11th Cir. 2005), we applied
plain error analysis to a claim that the defendant's sentence violated his Fifth and
Sixth Amendment rights in light of Booker. 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. Applying the third prong, the court in
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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 advisory guidelines would have resulted in a lesser sentence. Id. at
1301.
Similarly, Cabezas cannot show that his sentence would be any lower if the
judge understood the guidelines to be advisory rather than mandatory. Cabezas
argues that because he was sentenced at the lowest end of the guidelines range and
because the judge refused to depart downward in order to achieve sentencing parity
with his co-defendants, he has met his burden and demonstrated that the mandatory
guidelines resulted in an increased sentence. However, it simply does not follow
that a judge’s refusal to depart downward based on sentencing parity somehow
indicates a reasonable probability that the judge would depart in an advisory
regime. A sentence at the lowest end of the guidelines range, by itself, is
insufficient to demonstrate a reasonable probability that the judge would depart
from the guidelines altogether in an advisory system. See United States v. Fields,
__F.3d__, 2005 WL 1131778 at *4 (11th Cir. May 16, 2005) (“We agree with the
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First, Fourth, Fifth, and Eighth Circuits that the fact that the district court
sentenced the defendant to the bottom of the applicable guidelines range
establishes only that the court felt that sentence was appropriate under the
mandatory guidelines system. It does not establish a reasonable probability that the
court would have imposed a lesser sentence under an advisory regime.”). Thus,
Cabezas cannot satisfy the third prong of the plain error test because he cannot
show that the Booker error affected his substantial rights.
II. Cabezas’s Challenge to Being Found a “Captain”
Cabezas argues that he was a captain in name only, not in the functions he
actually performed on the boat, making the sentencing court’s enhancement under
U.S.S.G. § 2D1.1(b)(2)(B) inappropriate.
We review “a district court’s findings of fact for clear error.” United States
v. Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003). Under U.S.S.G. §
2D1.1(b)(2)(B), a defendant’s sentence is increased two levels if he “acted as a
pilot, copilot, captain, navigator, flight officer, or any other operation officer
aboard any craft or vessel.” The guidelines do not define “captain,” although in
Rendon we noted that decisions interpreting it have “declined to adopt a rigid
definition.” Rendon, 354 F.3d at 1329. We also cited two decisions from other
circuits holding that a defendant need only “act as” a captain to warrant an
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enhancement, and need not possess any “special navigational rank or skills.” Id.
(citations omitted).
The evidence showed that Cabezas had been serving as the captain of ships
since he was 26, admitted he recruited the personnel, slept in one of the two state
rooms, and initially told the Coast Guard that he was the captain, well before he
tried to recant or explain away his statement. Furthermore, even if “navigational
rank or skills” are not required, Cabezas’s ability to navigate a ship, and skills as a
captain, whether or not he knew how to use a sophisticated GPS device, could only
serve to bolster the district court’s ultimate determination that he was a “captain”
of the boat within the meaning of § 2D1.1(b)(2)(B).
III. Constitutionality of the MDLEA
Finally, Cabezas argues that the penalty provisions in 21 U.S.C. § 960,
referenced by the MDLEA, are unconstitutional under Apprendi, and because those
provisions are not severable from the crimes they penalize, both Cabezas’ sentence
and conviction are void. However, Cabezas waived his right to challenge the
constitutionality of § 960 and the MDLEA under Apprendi because he
unconditionally pled guilty to the charge.
We have held that “[a] defendant's unconditional plea of guilty, made
knowingly, voluntarily, and with the benefit of competent counsel, waives all
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non-jurisdictional defects in that defendant's court proceedings.” United States v.
Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997) (quotation and citation omitted).
Furthermore, we have held that “[Apprendi] claims are not jurisdictional.” United
States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001).
Here, the lynchpin of Cabezas’ constitutional argument is that Apprendi
renders unconstitutional the penalty provisions of 21 U.S.C. § 960(b). Because
Apprendi claims are not jurisdictional, and Cabezas’s unconditional guilty plea
waived his right to challenge all non-jurisdictional defects, we decline to address
the merits of his challenge.
Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error. Accordingly, Cabezas’ 135-month sentence and
conviction are
AFFIRMED.
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