[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
______________________ ELEVENTH CIRCUIT
May 10, 2005
No. 04-12825 THOMAS K. KAHN
Non-Argument Calendar CLERK
______________________
D. C. Docket No. 03-00258-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL ELLIOTT HAMPTON, JR.,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Southern District of Alabama
_______________________
(May 10, 2005)
Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Defendant-Appellant Paul Elliott Hampton, Jr., appeals his 46-month
sentence for possession of an unregistered firearm, in violation of 26 U.S.C. §
5861(d). No reversible error has been shown; we affirm.
Defendant raises for the first time on appeal a single issue: whether the
district court committed reversible constitutional error under Blakely v.
Washington, 124 S.Ct. 2531 (2004), when it imposed a two-level enhancement
under U.S.S.G. § 2A2.2 based on judicially determined facts that were neither
charged in the indictment nor admitted by Defendant during the Fed.R.Crim.P. 11
plea proceedings.1 Blakely concluded that a state mandatory guideline system
violated a defendant’s Sixth Amendment constitutional rights when a sentence
enhancement was imposed based on facts found by a judge that were not admitted
by the defendant. Id. at 2534-38. And in Booker v. United States, 125 S.Ct. 738
(2005), the Supreme Court concluded that Blakely applied to the Federal
Sentencing Guidelines. Booker, 125 S.Ct. at 749.
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Hampton filed written objections to his PSI and disputed again at sentencing the facts that
supported the cross-reference of the gun possession offense to the guideline for aggravated assault,
U.S.S.G. § 2A2.2; he concedes that did not raise in the district court the constitutional issue now
raised on appeal.
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Because Defendant raises this issue for the first time on appeal, we review
his claim only for plain error. See United States v. Cotton, 122 S.Ct. 1781, 1785
(2002); United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005). On plain
error review, a defendant must show “error” that is “plain” and that “affect[s]
substantial rights.” United States v. Olano, 113 S.Ct. 1770, 1776 (1993). It is
only after these conditions have been satisfied that an appellate court has
discretion to notice a forfeited error. Id. An appellate court may remedy error that
is plain and affects substantial rights only if “the error ‘seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.’” Johnson v.
United States, 117 S.Ct. 1544, 1549 (1997) (quoting Olano, 113 S.Ct. at 1776).
In United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005) petition for
cert. filed (U.S. Feb. 23, 2005) (No. 04-1148), we recognized that an
enhancement imposed under a mandatory guidelines system based on facts found
by the judge that went beyond those admitted by the defendant or found by the
jury constituted Booker error. Id. at 1298-99. And, because of Booker, we
concluded that that error is now plain. So Defendant has satisfied the first two
requirements for plain error relief. Id. at 1299.
Defendant fails, however, to satisfy the third requirement: that the error
“affected substantial rights.” As we explained in Rodriguez, the Booker error is
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not the use of extra-verdict enhancements; it is “the use of extra-verdict
enhancements to reach a guidelines result that is binding on the sentencing judge.”
Id. at 1301. To show the prejudice required for plain error relief, a claimant must
show a “reasonable probability of a different result if the guidelines had been
applied in an advisory instead of binding fashion.” Id.
Defendant has not met his burden of showing that the Booker error in his
case affected the outcome of his sentencing. See id. at 1301, 1306. Defendant
proffers nothing to show that a reasonable probability exists that the sentencing
judge would have imposed a more lenient sentence had the guidelines been
applied in an advisory and non-binding fashion. See id. at 1301.
AFFIRMED.
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