[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 4, 2005
No. 04-12635
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-80037-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HANRI RASEAN INGRAHAM
a.k.a. Bobby Q. Ingraham,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 4, 2005)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Hanri Rasean Ingraham pleaded guilty to two counts of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and was
sentenced to eighty-four months’ imprisonment. He argues on appeal that his
sentence is unconstitutional in light of United States v. Booker, 543 U.S. ___, 125
S. Ct. 738 (2005), because his sentence was enhanced as a result of findings made
by the district court that went beyond the facts admitted by him or found by the
jury.
Because Ingraham did not raise this argument before the district court, our
review is only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir. 2005). “An appellate court may not correct an error the defendant failed
to raise in the district court unless 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).
Ingraham met the first two prongs of the plain error test by demonstrating
that the district court committed an error that is plain. See id. at 1298–99. As for
the third prong of the plain error test, Ingraham has the burden of showing that the
error has affected his substantial rights. See id. at 1299. To do this, he must
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establish that “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.” 1 Id. at 1301.
There is no evidence in the record to suggest that the district court would
have given Ingraham a lesser sentence had it applied the guidelines in an advisory
instead of binding fashion. As a result, Ingraham has failed to satisfy the third
prong of the plain error test. See id.
AFFIRMED.
1
Ingraham suggests that he need not demonstrate a reasonable probability of a different
result if the guidelines had been applied in an advisory fashion by the district court because,
according to him, the error is “structural” in nature. He argues that, since the error is structural,
the third prong’s substantial rights analysis is automatically met.
Although not explicitly addressed in our Rodriguez opinion, it is clear that this Court has
rejected the notion that Booker constitutional error is structural. See generally Rodriguez, 398
F.3d at 1291; see also United States v. Rodriguez, ___ F.3d. ___ (11th Cir. Apr. 19, 2005)
(denial of reh’g en banc) (Carnes, J., concurring); but see id. (Tjoflat, J., dissenting).
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TJOFLAT, Circuit Judge, concurring specially:
As I explain in my dissent to the court’s refusal to rehear Rodriguez en banc,
the error in a case such as this—where the district court enhances the defendant’s
sentence on the basis of facts not admitted by the defendant or found by a jury—is
structural error, and the third prong of the plain-error test is, therefore,
inapplicable. See United States v. Rodriguez, — F.3d —, 2005 WL 895174 (11th
Cir. Apr. 19, 2005) (Tjoflat, J., dissenting from the denial of rehearing en banc).
Accordingly, the court should consider whether the error “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed.2d 508 (1993). The
court declines to do that because, as I agree, it is Rodriguez bound.
4