[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
November 21, 2005
No. 04-11849 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-20881-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYNEL HEBERTO WOOD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 21, 2005)
Before HULL, MARCUS and HILL, Circuit Judges.
PER CURIAM:
Raynel Heberto Wood (“Wood”) appeals his 97-month sentence for
importation of 500 grams or more of cocaine, in violation of 21 U.S.C. § 952(a).
On appeal, Wood contends that his sentence should be vacated and remanded for
resentencing in light of United States v. Booker, 543 U.S. __, 125 S. Ct. 738
(2005). We disagree, and affirm Wood’s sentence.
I. BACKGROUND
This is the second time Wood has been before this Court.
In January 2001, Wood was indicted for importing cocaine into the United
States. Wood pled not guilty and proceeded with a jury trial, at which he testified.
The jury found Wood guilty, and the district court sentenced Wood to 97 months’
imprisonment and 4 years’ supervised release. On appeal, we vacated Wood’s
conviction and remanded the case to the district court for dismissal of the
indictment with prejudice because of violations of Wood’s rights under the Speedy
Trial Act, 18 U.S.C. § 3161. See United States v. Wood, No. 02-13695 (11th Cir.
August 29, 2003) (unpublished).
Wood was re-indicted for the same offense conduct, and was again found
guilty following a jury trial, at which he did not testify. The Presentence
Investigation Report (“PSI”) recommended a base offense level of 28. See
U.S.S.G. § 2D1.1(a)(3) (providing for a base offense level of 28 for an offense
involving at least 2 kilograms but less than 3.5 kilograms of cocaine). With a
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criminal history category of I, Wood’s Guidelines range was 78-97 months’
imprisonment.
The government objected to the PSI, arguing that Wood had obstructed
justice in giving what it characterized as false and misleading testimony at the first
trial and the suppression hearing that preceded the first trial. Wood responded that
the conviction that was obtained after the first trial was overturned on appeal, and
could not be used to enhance a sentence imposed after a separate trial where he did
not testify. Wood also argued that the fact that the jury chose not to credit his
testimony during the first trial did not render that testimony perjurious.
During the sentencing hearing, the district court sustained the government’s
objection to the PSI, finding that Wood had given false testimony at his first trial
and suppression hearing. The district court relied on United States v. Has No
Horse, 42 F.3d 1158, 1159-1600 (8th Cir. 1994) (holding that “[a] defendant’s
attempt to obstruct justice does not disappear merely because his conviction has
been reversed on grounds having nothing to do with the obstruction”).
The district court stated that the obstruction-of-justice enhancement
“unfortunately puts [Wood] at a[n] offense level of 30 with a range of 97 to 121
months.” The district then sentenced Wood to 97 months’ imprisonment, the low
end of the Guidelines range. In doing so, the district court stated, “I am going to
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impose a sentence at the low end of the guidelines range under the circumstances.
I think that it is the appropriate sentence in terms of punishing him for his past
criminal activity and also to act as a deterrent for any future criminal activity.”
Wood timely appealed, challenging only his sentence, in light of the
Supreme Court’s decision in Booker.1
II. DISCUSSION
Because Wood did not raise any constitutional issues in the district court
based on Apprendi, Blakely, or Booker, and instead raised these issues for the first
time in his prior direct appeal, our review of his sentence is only for plain error.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S.
Ct. 2935 (2005).2
“Under Booker, there are two kinds of sentencing errors: one is
constitutional and the other is statutory.” United States v. Dacus, 408 F.3d 686,
688 (11th Cir. 2005). “[T]he Sixth Amendment right to trial by jury is violated
1
On appeal, Wood does not challenge the district court’s reliance on Has No Horse.
Wood also does not challenge the district court’s reliance on the testimony from his first trial to
enhance his sentence.
2
To establish plain error, the defendant must show “‘(1) error, (2) that is plain, and (3)
that affects substantial rights.’” Rodriguez, 398 F.3d at 1298 (quoting United States v. Cotton,
535 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002)). “‘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. (quoting Cotton,
535 U.S. at 631, 122 S. Ct. at 1785).
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where under a mandatory guidelines system a sentence is increased because of an
enhancement based on facts found by the judge that were neither admitted by the
defendant nor found by the jury.” Rodriguez, 398 F.3d at 1298. The statutory
error occurs when the district court sentences a defendant “under a mandatory
Guidelines scheme, even in the absence of a Sixth Amendment enhancement
violation.” United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
In this case, there is a Sixth Amendment violation because the district court
enhanced Wood’s sentence, under a mandatory Guidelines system, for obstruction
of justice based on its fact-finding that Wood had given false testimony at his first
trial and suppression hearing. Rodriguez, 398 F.3d at 1298. Wood has thus
established the first two prongs of plain-error review. Rodriguez, 398 F.3d at
1298-99.
However, as to the third prong, Wood has not established that the Booker
error affected his substantial rights. The third prong of the plain-error test “almost
always requires that the error must have affected the outcome of the district court
proceedings.” Id. at 1299 (quotation marks and citations omitted). “The standard
for showing that is the familiar reasonable probability of a different result
formulation, which means a probability sufficient to undermine confidence in the
outcome.” Id. (quotation marks and citations omitted).
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In this case, the sentencing record provides no basis for a conclusion that
Wood has shown a reasonable probability of a more lenient sentence under an
advisory Guidelines regime. We recognize that the district court stated, in
calculating the Guidelines range, that the obstruction-of-justice enhancement
“unfortunately put [Wood] at a[n] offense level of 30. . . .” However, in
sentencing Wood, the district court explicitly stated that his 97-month sentence
was “the appropriate sentence in terms of punishing him for his past criminal
activity and also to act as a deterrent for any future criminal activity.” (Emphasis
added). The district court’s comment about the offense level in no way suggests
that the court was disposed to give a lower sentence, but instead represents the
obvious fact that Wood’s conduct, unfortunately for Wood, yielded an obstruction-
of-justice enhancement and a higher offense level. Moreover, even if we read the
district court’s comments at sentencing, taken as a whole, to be ambiguous, Wood
still would not have carried his burden of showing that the error actually did affect
his substantial rights. We repeat that “[w]here errors could have cut either way
and uncertainty exists, the burden is the decisive factor in the third prong of the
plain error test, and the burden is on the defendant.” Rodriguez, 398 F.3d at 1300.
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Further, although the district court sentenced Wood at the low end of the
Guidelines range, this Court has held 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.” United States v. Fields, 408
F.3d 1356, 1361 (11th Cir. 2005); see also United States v. Cartwright, 413 F.3d
1295, 1301 (11th Cir. 2005) (same). The district court expressed no desire to
impose a lower sentence.
Thus, we conclude that Wood has not satisfied the third prong of plain-error
review. Accordingly, we affirm Wood’s sentence of 97 months’ imprisonment.
AFFIRMED.
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