[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-12305 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
June 1, 2005
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THOMAS K. KAHN
CLERK
D.C. Docket No. 03-10024-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIAS SANTIESTEVAN,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Florida
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(June 1, 2005)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Elias Santiestevan appeals his 135-month sentence for conspiracy to possess
with intent to distribute five or more kilograms of cocaine on board a vessel
subject to United States jurisdiction, in violation of 46 U.S.C. app. §§ 1903(g) and
1903(j). On appeal, Santiestevan argues that his due process rights and right to a
jury trial were violated when the district court enhanced his sentence based on a
quantity of drugs not charged in the indictment or admitted by him. Because,
under United States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005), the district
court erred in sentencing Santiestevan under a mandatory sentencing guidelines
regime, and Santiestevan has established a reasonable probability that the district
court would have imposed a lesser sentence but for the mandatory guidelines, we
VACATE Santiestevan’s sentence and REMAND for re-sentencing.
I. BACKGROUND
Santiestevan was indicted for, among other things, conspiracy to possess
with intent to distribute five or more kilograms of cocaine on board a vessel
subject to United States jurisdiction, in violation of 46 U.S.C. app. §§ 1903(g) and
1903(j). At the hearing where he pled guilty, the plea agreement and the Factual
Basis for Plea were introduced. R1-60, 67, 68. The plea agreement did not
include a waiver of appellate rights. See R1-67. The Factual Basis, which
Santiestevan signed, stated that 428 kilograms of cocaine were recovered from the
water near the vessel from which Santiestevan and his co-defendants were
rescued. R1-68 at 1-2. The probation officer recommended that Santiestevan
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receive a base offense level of 35 and a criminal history category of I, resulting in
a sentencing guidelines’ range of 168 to 210 months. Santiestevan objected to the
probation officer’s recommendation and argued that he was entitled to reductions
under the safety valve provision and for his minor role in the offense. R1-107.
The government responded in opposition to both reductions. R1-108.
At sentencing, the government and Santiestevan indicated that the parties
had reached an agreement in which the government would not oppose the safety
valve reduction, and Santiestevan would withdraw his request for a minor role
reduction. R2 at 6-7, 8. Based on the safety valve reduction, the probation officer
then advised that Santiestevan’s offense level would be 33, with a sentencing
range of 135 to 168 months. Id. at 9. The district judge endorsed the agreement
regarding the safety value reduction and indicated that he would sentence
Santiestevan “at the low end of the guideline range.” Id. He commented that
particularly in circumstances such as these, I would impose a lower
sentence had I the discretion to do so, the discretion to depart. I don’t
find the basis for that, but I am not in agreement with the sentencing
guidelines as they are administered, but there is nothing I can do
about that. I must uphold the law.
Id. at 13. The district judge sentenced Santiestevan to 135 months of
imprisonment and three years of supervised release. Id. at 14, 17. Santiestevan
did not otherwise object to the district court’s sentence.
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On appeal, Santiestevan contends that under Blakely v. Washington, 524
U.S. __, 124 S. Ct. 2531 (2004),1 the district court plainly erred by applying a six-
level upward enhancement to his sentence based on a quantity of drugs greater
than that charged in the indictment.
II. DISCUSSION
We review “a district court’s interpretation of the sentencing guidelines and
its application of the guidelines to the facts” de novo. United States v. Gunn, 369
F.3d 1229, 1237-38 (11th Cir.) (per curiam), cert. denied, U.S. , 125 S. Ct. 324
(2004). When a defendant fails to make an objection or argument in the district
court, we review only for plain error. United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir. 2005), petition for cert. filed (U.S. Feb. 23, 2005) (No. 04-1148).
Under the plan error analysis, we may correct an error only where
there is: (1) error, (2) that is plain, and (3) that affects substantial
rights. 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. (internal quotations and citations omitted).
1
Although Santiestevan only referenced Blakely, the holding in Blakely was applied to the
federal sentencing guidelines in United States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005).
Therefore, we will treat Santiestevan’s claim as one raised under Booker. See United States v.
Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir. 2005).
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The district court did not err by enhancing Santiestevan’s sentence based on
the quantity of drugs because Santiestevan’s sentence was not enhanced as a result
of a judicial finding that went beyond the facts admitted by Santiestevan.
Therefore, there is no Sixth Amendment violation under Booker. See United
States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). However, because the
district court sentenced Santiestevan under a mandatory guidelines scheme, his
sentence constitutes a Booker error, which is plain at the time of appellate review.
See id. at 1330-31. Because the district court expressed that it would depart from
the Guidelines if it had the discretion to do so and sentenced Santiestevan at the
lowest possible sentence under the Guidelines, 135 months, there is a reasonable
probability that the district court would have imposed a lesser sentence if the
Guidelines were not considered mandatory.2 See id. at 1332-33. Therefore,
Santiestevan has satisfied the first three prongs of the plain error analysis. Where
a district court has expressed the desire to impose a sentence less than that
available at the low end of the Guidelines, and the Supreme Court has held that the
district court has the discretion to impose such a reasonable sentence upon
2
Based on the quantity of drugs to which Santiestevan’s pled, Santiestevan faced a statutory
minimum sentence of 10 years, or 15 months less than the guidelines sentence he received. See 46
U.S.C. app. § 1903(g), 21 U.S.C. § 960(b)(1)(B).
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consideration of the factors provided in 18 U.S.C. § 3553(a), the fourth prong of
the plain error analysis is satisfied. See id. at 1333-34.
III. CONCLUSION
For the reasons stated above, we vacate Santiestevan’s sentence and remand
for re-sentencing.
VACATED and REMANDED.
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