United States v. Kornegay

United States Court of Appeals
For the First Circuit

No. 04-1681

UNITED STATES,

Appellee,

v.

ANDREW KORNEGAY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Torruella, Lynch, and Howard,

Circuit Judges.

Eduardo Masferrer, with whom Masferrer & Hurowitz, P.C. was on
brief, for appellant.
Timothy Q. Feeley, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Theodore B.
Heinrich, Assistant United States Attorney, were on brief, for
appellee.

June 9, 2005
 HOWARD, Circuit Judge. Defendant Andrew Kornegay appeals

from his conviction and sentence on one count of distributing five

or more grams of cocaine base in violation of 21 U.S.C. §§

841(a)(1) & 841(b)(1)(D). We affirm.

I.

We set forth the facts in the light most favorable to the

verdict, see United States v. Capozzi, 347 F.3d 327, 328 (1st Cir.

2003), and provide additional facts in our discussion of the legal

issues. In the spring of 2001, an individual named Richard Chaney,

a convicted narcotics user, agreed to cooperate with the Bureau of

Alcohol, Tobacco, and Firearms (ATF) in identifying narcotics and

firearms distributors. In the summer of 2001, Chaney notified an

ATF agent that he had been in contact with Kornegay and could

purchase a half-ounce of crack cocaine from him. Chaney knew

Kornegay from their time as cellmates in a Massachusetts jail

during early 2001.

The ATF authorized Chaney to make a controlled purchase

of crack cocaine from Kornegay. On August 20, 2001, Kornegay met

Chaney on Geneva Avenue in Boston, Massachusetts, entered Chaney's

car, and received a $470 payment from him. Several minutes later,

Kornegay returned to the car and gave Chaney over 13 grams of crack

cocaine. The purchase was monitored by audio and video

surveillance equipment and was observed by several law enforcement

officers.

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 Kornegay was not indicted for this sale until April 2003.

The ATF delayed apprehending Kornegay because the agency wanted to

preserve Chaney as an informant. Meanwhile, Kornegay served a 14-

month state sentence for another drug conviction. At trial on the

federal charge, Kornegay defended on the ground of mistaken

identity. He claimed that his identical twin brother, Andre

Kornegay, had sold the drugs to Chaney.

The government met this defense through the introduction

of pictures of the Kornegay brothers taken in 2001 and the

videotape of the drug deal. Chaney also identified Kornegay based

on their time together in prison. Additionally, Boston Police

Detective Earl Perkins testified that, in the summer of 2001, he

encountered Andrew and Andre Kornegay on several occasions and that

he could distinguish them because Andrew had shorter hair and a

fuller face than his brother and had fashioned his left eyebrow in

a distinctive "three-slash" style. Perkins also identified the

individual in the videotape of the drug deal as Andrew Kornegay.

After a five-day trial, the jury convicted Kornegay on

one count of distributing five or more grams of crack cocaine. The

court calculated Kornegay's sentence range at between 78 and 97

months and sentenced Kornegay to the minimum of 78 months'

imprisonment. This appeal followed.

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 II.

Kornegay presses five arguments on appeal. First, he

claims that Detective Perkins' identification testimony should have

been suppressed because he learned of Kornegay's distinguishing

characteristics through unconstitutional investigatory stops

conducted by the Boston police during the summer of 2001. Second,

he contends that the admission of Detective Perkins' identification

testimony violated Federal Rules of Evidence 701 and 403. Third,

he argues that the prosecutor prejudicially vouched for Detective

Perkins' credibility and appealed to the jury's emotions during the

closing argument. Fourth, he posits that the district court erred

in denying him certain downward departures under the Sentencing

Guidelines. Finally, he asserts that he is entitled to

resentencing because the district court erroneously considered the

Guidelines mandatory in determining his sentence.

A. Motion to Suppress

Kornegay contends that the district court should have

suppressed Detective Perkins' identification testimony as the fruit

of several illegal Terry stops conducted by the Boston police

during the summer of 2001. See Terry v. Ohio, 392 U.S. 1 (1968)

(permitting police to conduct investigatory stops based on

reasonable suspicion of criminal activity). The government

counters that Kornegay's suppression motion was correctly denied

because Kornegay failed to establish a connection between the

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allegedly unconstitutional conduct and Detective Perkins'

testimony.

In a voir dire before the district court,1 Perkins

testified that, during the summer of 2001, he learned that Kornegay

was possibly a drug dealer and that he might be called upon to

distinguish Kornegay from his identical twin brother in a

subsequent prosecution. Therefore, throughout the summer, Perkins

sought opportunities to encounter Kornegay so that he could

positively identify him. Perkins testified that, on six occasions,

he encountered Kornegay while Kornegay was talking to other police

officers.2 Each time Perkins saw Kornegay, Kornegay was already

talking with the police, and therefore Perkins did not know the

circumstances which led to the encounter. In particular, Perkins

testified that he did not know whether the police had pat-frisked

Kornegay and could not remember how many officers were present.

Perkins identified the locations where several of these encounters

occurred.

Aside from Detective Perkins' testimony, the only

evidence before the district court was Kornegay's affidavit

1
Kornegay did not file the motion to suppress Perkins'
testimony until after the trial had begun. The court therefore
held a hearing on the motion immediately prior to permitting
Perkins to testify.
2
On two occasions, Kornegay was with his twin brother.

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submitted in conjunction with the suppression motion. In his

affidavit, Kornegay stated:

During the summer of 2001, I was stopped on
multiple occasions by members of the Boston
Police Department . . . . I do not recall the
names of the officers who stopped me. As many
as 4 to 5 officers would approach me without
warning and surround me. They would ask which
Kornegay brother I was. I would identify
myself and the officers would then pat-frisk
me . . . . I never felt as if I was free to
leave the police officers when they approached
me.

Kornegay did not testify concerning the stops or introduce other

evidence or witnesses in support of his motion. After Perkins'

testimony and argument, the district court orally denied the motion.

Appellate review of a suppression motion is bifurcated. The

ultimate conclusion as to suppression as well as the determination

that a given set of facts meets the legal standard for reasonable

suspicion are reviewed de novo. But the trial court's findings of

facts are reviewed for clear error. See United States v. Charles,

213 F.3d 10, 17 (1st Cir. 2000). "We will uphold a denial of a

motion to suppress if any reasonable view of the evidence supports

it." United States v. Mendes-de Jesus, 85 F.3d 1, 2 (1st Cir.

1996).

To succeed on a motion to suppress, a defendant must

establish a nexus between the Fourth Amendment violation and the

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evidence that he seeks to suppress.3 See Alderman v. United States,

394 U.S. 165, 183 (1969); United States v. Finucan, 708 F.2d 838,

844 (1st Cir. 1983); see also United States v. King, 222 F.3d 1280,

1285-86 (10th Cir. 2000); Kandik, 633 F.2d at 1335; 6 W.R. LaFave,

Search and Seizure, § 11.2(b) at 50 n.75 (4th ed. 2004) (citing

cases). Kornegay failed to meet this burden.

In his affidavit, Kornegay claimed that he was unlawfully

stopped by Boston police officers on several occasions in the summer

of 2001. He did not claim that Detective Perkins was present at

these stops. Nor did he claim that Perkins was a participant in an

illegal stop. If Perkins was merely an uninvolved observer, even

to an illegal stop, Kornegay would have no plausible argument.

Perkins testified that he saw Kornegay at certain locations after

Kornegay was already talking to the police, but that he did not know

the circumstances that led to these encounters. Even after Perkins

identified the locations of the encounters, Kornegay failed to

produce evidence that any of the stops alluded to in his affidavit

were the ones identified by Perkins. As the district court stated,

based on the record before it, it could not conclude that the stops

"in the affidavit [were] the same stops that Perkins [was] talking

3
If the defendant meets this initial burden, the evidence will
be suppressed unless the government proves that the evidence would
have been inevitably discovered, was discovered through independent
means, or was so attenuated from the illegality as to dissipate the
taint of the unlawful conduct. See United States v. Nava-Ramirez,
210 F.3d 1128, 1131 (10th Cir. 2000); United States v. Kandick, 633
F.2d 1334, 1335 (9th Cir. 1980).

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about." In the absence of proof that Perkins' testimony was based

on information gleaned from the allegedly unlawful stops, Kornegay

failed to establish the nexus between the claimed Fourth Amendment

violation and the evidence he sought to suppress. See Nava-Ramirez,

210 F.3d at 1131-32 (affirming the denial of a motion to suppress

because the defendant failed to show a connection between the

allegedly unconstitutional seizure and the evidence he sought to

suppress).

B. Lay Testimony

Kornegay next contends that the district court erred by

admitting Detective Perkins' identification testimony as a lay

opinion under Fed. R. Evid. 701. We review the district court's

ruling for a manifest abuse of discretion. See United States v.

Jackman, 48 F.3d 1, 4 (1st Cir. 1995).

Rule 701 allows for the admission of lay opinion testimony

that is "(a) rationally based on the perception of the witness, and

(b) helpful to a clear understanding of the witness' testimony or

the determination of a fact in issue." Kornegay challenges Perkins'

testimony under both prongs. He claims that Perkins' observations

during the summer of 2001 were so limited in duration that the in-

court identification was not rationally based on Perkins'

perception. He also contends that the testimony was unnecessary

because Perkins' observations were brief and the jury had sufficient

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other evidence of identity (i.e., photographs and the videotape of

the crime) to make the identification.

Based on Perkins' testimony, it is clear that the

identification was based upon Perkins' personal observation and the

recollection of concrete facts. Perkins described the encounters

with Kornegay in detail and provided specific recollections about

Kornegay's distinguishing features. This testimony is adequate to

establish that the identification was rationally based on Perkins'

perception.

The next question is whether Perkins' testimony was

helpful to the jury. Here the extent of Perkins' observation is

relevant. As we explained in Jackman, identification testimony is

helpful to the jury "when the witness possesses sufficiently

relevant familiarity with the defendant that the jury cannot also

possess, and when the photographs [of the defendant] are not either

so unmistakably clear or so hopelessly obscure that the witness is

no better suited than the jury to make the identification." 48 F.3d

at 4-5.

Perkins' contact with Kornegay on six occasions within a

few months is within the zone that courts have found acceptable to

show that the witness was sufficiently familiar with the defendant

to provide a useful identification. See, e.g., Beck, 393 F.3d 1088,

1091 (9th Cir. 2005) (affirming identification testimony of a parole

officer who met with the defendant four times over two months),

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vacated on other grounds, --U.S.--, 125 S.Ct. 2000 (2005); United

States v. Pierce, 136 F.3d 770, 775 (11th Cir. 1998) (affirming

identification testimony of an officer who met the defendant ten

times over seven months); United States v. Wright, 904 F.2d 403,

404-05 (8th Cir. 1990) (affirming identification testimony of a

police officer who had seen the defendant eight times over two

years); United States v. Allen, 787 F.2d 933, 935 (4th Cir. 1986)

(affirming identification testimony of a parole officer who briefly

met the defendant on six or seven occasions), vacated on other

grounds, 479 U.S. 1077 (1987). Moreover, Perkins' encounters with

Kornegay were for the sole purpose of distinguishing him from his

twin brother. Thus, Perkins was no doubt acutely aware of the

subtle features of Kornegay's appearance during their several

encounters, and, at two of the encounters, he was able to directly

compare Kornegay to his twin brother. In light of the circumstances

surrounding Perkins' encounters with Kornegay, we have little doubt

that Perkins developed a sufficient familiarity with Kornegay to

provide a competent identification.

We also conclude that Perkins' testimony was helpful to

the jury in making the ultimate identification of the suspect. The

visual evidence before the jury was not particularly clear. The

videotape of the drug deal was blurry and showed the seller's face

for only a few seconds. Thus, it would have been difficult for the

jury to attempt to match the photograph of Kornegay with the person

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in the videotape. See Jackman, 48 F.3d at 5 (permitting

identification testimony because the pictures of the robbery suspect

were blurred).

The difficulty in making the identification was compounded

here because the jury was asked to draw a distinction between

identical twin brothers. Perkins was the only government witness

who could testify that he had seen the brothers together near in

time to the drug deal. Given that Kornegay defended by claiming

that Andre had sold the drugs to Chaney, a witness who could

distinguish the brothers based on personal observations made in the

summer of 2001 was, at the very least, helpful. See Fed. R. Evid.

701(b). The district court's ruling that Perkins' testimony

satisfied the requirements of Rule 701 was not an abuse of

discretion.

Kornegay also argues that Perkins' testimony should have

been excluded under Fed. R. Evid. 403 as overly prejudicial.

Essentially, Kornegay contends that Perkins' familiarity with him

derived from a criminal investigation, and therefore the jury likely

drew a prejudicial inference from the fact that he was under

investigation.

Evidence should be excluded under Rule 403 only where its

probative value "is substantially outweighed by its prejudicial

effect, that is, by its tendency to encourage the jury to decide the

case on improper grounds." See United States v. Adams, 375 F.3d

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108, 111 (1st Cir. 2004). Trial judges enjoy wide latitude in

making Rule 403 rulings and are only overturned after a showing of

an egregious error. See id.

Kornegay argues that Perkins' testimony was of little

probative value because the photographs of the Kornegay brothers

were sufficient for the jury to make the identification and there

were other, less prejudicial forms of evidence that the government

could have introduced to bolster its case (e.g., fingerprint

evidence). Whether the government has alternative means of

effectively proving its case without introducing the prejudicial

evidence is pertinent to the Rule 403 analysis. See United States

v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000). But, as

discussed, because Kornegay accused his identical twin brother of

the crime, and because the videotape was of poor quality, the

photographic evidence was not sufficiently clear to make the

identity testimony unnecessary. Moreover, there is no record

support for Kornegay's contention that the government had other

identification evidence at its disposal that it could have

introduced in lieu of Perkins' testimony.

There was also no prejudice because Perkins did not go

beyond identification and did not describe Kornegay's criminal

background. Appellate courts have found no substantial prejudice

where the trial court has restricted the witness' testimony to limit

references to the defendant's criminal background. See, e.g.,

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United States v. Stormer, 938 F.2d 759, 763-764 (7th Cir. 1991);

Allen, 787 F.2d at 937-38; United States v. Farnsworth, 729 F.2d

1158, 1161 (8th Cir. 1984).

Here, the district court took the necessary precautions.

Through the use of leading questions, Perkins testified that he was

a police officer but did not specify his duties or responsibilities.

He told the jury that he encountered the Kornegays as part of the

Boston Police Department's community policing program, which

encourages officers to become familiar with the individuals who live

in their assigned neighborhood beats. He also told the jury that

the encounters in the summer of 2001 were not arrests and did not

involve allegations of criminal activity. These precautions were

sufficient to limit the potential prejudice from Perkins'

testimony.4

C. Closing Argument

Kornegay challenges certain portions of the government's

closing argument as improper vouching for the credibility of

Detective Perkins. Kornegay cites two statements (which are set out

below) in which the government asked the jury to believe Detective

Perkins' identification testimony because he was an experienced

4
Kornegay also contends that he was prejudiced because he
could not vigorously cross-examine Perkins because he feared that
Perkins would offer prejudicial testimony. But Kornegay has not
identified specific questions that he would have asked, and our
review of the record indicates that Kornegay did aggressively
cross-examine Perkins.

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police officer who could lose his job or go to jail if he lied on

the witness stand.5

We have recognized that statements such as these, which

arguably ask the jury to believe the testimony of a police officer

because of the esteem in which the public holds law enforcement and

the risk that a police officer would take by lying in court, are

"inappropriate." United States v. Torres-Galindo, 206 F.3d 136, 142

(1st Cir. 2000). On appeal, the government essentially concedes

that the challenged statements run afoul of this admonition. It

nevertheless contends that the error was harmless.

In Torres-Galindo, we ruled that similar statements were

harmless because the statements were not a severe infraction, the

court instructed the jury that the statements and arguments of

counsel are not evidence, and the evidence against the defendant was

5
The first statement was:

The defense want you to believe that
Detective Earl Perkins made this up. . .
Commit perjury , a detective with 15 years
on the Boston Police Department . . . I
submit to you that you can tell from
examining and watching Earl Perkins that
he has better things to do.

The second statement was:

What's [Kornegay's] claim at base? He's
saying, well Earl Perkins came in here and
committed perjury and put his job at risk
and risked prison and risked all of these
things because -- why?

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substantial. See id. at 142-43. Each of these factors is present

here.

Most importantly, the district court judge provided a

curative instruction that was far more explicit than the one which

we found sufficient in Torres-Galindo. In response to Kornegay's

objection, the district court told the jury:

In discussing the testimony of Detective
Perkins, [the prosecutor] referred to evidence
concerning Mr. Perkins's tenure on the police
force in Boston, and he observed that his
testimony, if not truthful . . . would put the
officer at risk of loss of his job, the risk
of committing perjury and going to prison . .
. .
Now, in his favor, [the prosecutor] pointed
out . . . that Detective Perkins' testimony as
a police officer stood in the same light as
any witness . . . in as far as his credibility
is concerned, and I want to emphasize that.

The argument that [the prosecutor] made about
risking loss of job and risking perjury might
be understood by you to be an appeal to some
notion that the officer is entitled to more
credibility because he's a police officer. . .
. If you are inclined to believe that, that is
wrong; you're to judge all the witnesses the
same.

[Detective] Perkins gets no special credit
because he's a police officer. . . . In so far
as there's a risk of going to prison for
perjury, everyone who testifies in this
courtroom faces the same risk. I want to
point this out to you, just in case there is
any [misunderstanding] that [Detective]
Perkins is somehow elevated in his credibility
because he is a police officer.

Given the strong case presented by the government, the limited

nature of the infraction, the court's detailed curative

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instruction, and our presumption that juries follow the court's

instructions, see United States v. De Jesus Mateo, 373 F.3d 70, 73

(1st Cir. 2004), we are convinced that the government's

inappropriate statements concerning Perkins' testimony were not

prejudicial in these circumstances.6

D. Downward Departures

Kornegay claims that the district court erroneously

denied him a downward departure on either of two bases. Both

departure arguments relate to the 14-month state drug conviction

sentence which Kornegay served after the drug deal at issue in

this case but before he was indicted.

The first ground for departure was premised on the

government's delay in prosecuting Kornegay in order to protect

Chaney from being detected as an informant. Kornegay argued that

this delay foreclosed the possibility of his federal sentence

running concurrently with his state sentence and that a departure

should be granted so that he would not be prejudiced. See United

States v. Saldana, 109 F.3d 100, 104 (1st Cir. 1997) (holding that

6
Kornegay also challenges the prosecutors suggestion that, in
evaluating the likelihood that Perkins lied, the jury should use
common sense and place themselves in the witness' shoes to evaluate
his testimony. We discern no error. Kornegay has cited no
authority for the proposition that a prosecutor cannot ask a jury
to use common sense in evaluating a witness' possible bias.
Inherent in such a common sense evaluation is that each juror will
place him or herself in the witness' position to judge the witness'
motivations based on the juror's notion of typical human behavior.

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prosecutorial delay that was "extreme" or "sinister" could support

a departure if the defendant was required to serve a state

sentence which could have been concurrent with the federal

sentence had the federal prosecution proceeded sooner). The

district court declined to grant the departure but did not provide

a clear reason for its decision.

This court has jurisdiction to review the denial of a

request for a downward departure if the court denied the departure

as precluded by law. See United States v. Romolo, 937 F.2d 20, 22

(1st Cir. 1991). If, however, the defendant's claim is only that

the district court unreasonably declined to exercise its

discretion to grant a departure, we may not review it. See id.

On the record before us, it is not clear whether the court

declined the Saldana departure as a matter of law or discretion.

In such circumstances, absent information in the record suggesting

otherwise, we assume that the court understood that it could

depart but decided not to do so as a matter of discretion. See

United States v. Lujan, 324 F.3d 27, 32 (1st Cir. 2003); see also

United States v. Scott, 387 F.3d 139, 143 (2d Cir. 2004); United

States v. Williams, 355 F.3d 893, 901 (6th Cir. 2003); United

States v. Heredia-Cruz, 328 F.3d 1283, 1289-90 (10th Cir. 2003);

United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999).

Kornegay asserts that the district court believed that

it did not have the authority to grant the departure based on its

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statement that "if I look at all the relevant material, I cannot

find that this departure is authorized." But this statement was

clearly related to Kornegay's other departure request (which we

discuss infra) and not the Saldana request. As there is no basis

on which to conclude that the district court believed it was

legally precluded from granting a Saldana departure, we may not

review its decision to deny the departure. See Scott, 387 F.3d at

143.

Kornegay's second ground for departure was premised on

his belief that the district court should have reduced his

sentence to account for the time that he served for the state drug

conviction because it was conduct related to the present offense.

Kornegay premises his argument on § 5G1.3(c) in the 2000 version

of the Sentencing Guidelines.7 The government responds that the

2003 Guidelines apply to this case and, under the relevant section

of those Guidelines, § 5K2.23, Kornegay was legally precluded from

the departure because the state sentence did not result in an

increased offense level for the federal conviction. For this

request, the district court ruled that it could not grant the

7
Section 5G1.3(c) provides that a defendant's sentence may run
concurrently with an undischarged term of imprisonment for conduct
that is related to the instant offense. Kornegay contends that
this provision should be read broadly to authorize a downward
departure where the defendant has completed a term of imprisonment
for conduct related to the instant offense.

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departure as a matter of law. Our review is therefore de novo.

United States v. Grandmaison, 77 F.3d 555, 560-61 (1st Cir. 1996).

To evaluate Kornegay's claim, we must first determine

which version of the Guidelines apply. The general rule is that

the version of the Guidelines in force at the time of sentencing

applies -- here, the 2003 Guidelines. See U.S.S.G. § 1B1.11. If,

however, applying the most recent Guidelines version creates an ex

post facto problem, the court applies the Guidelines in force at

the time of the offense -- here, the 2000 Guidelines. See id. §

1B1.11(b)(2). Kornegay has not made an ex post facto argument to

justify his assertion that the 2000 Guidelines apply. He has

therefore forfeited any claim for applying the earlier Guidelines

version. See In re Gosselin, 276 F.3d 70, 72 (1st Cir. 2002); see

also Prewitt v. United States, 83 F.3d 812, 820-21 (7th Cir. 1996)

(stating that defendant forfeited ex post facto claim for applying

earlier version of the Guidelines by not raising the argument

before the district court).

Under the 2003 Guidelines, § 5K2.23 provides that a

downward departure may be appropriate if the defendant has

completed a term of imprisonment and the completed sentence was

for a crime that was relevant conduct for the instant offense and

was the basis for an increase in the offense level for the instant

offense. Kornegay meets the first two conditions for eligibility

for this departure, but the offense level was not increased as a

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result of considering the earlier conviction. The district court

therefore correctly denied the § 5K2.23 departure request. See

United States v. Ramanauskas, No. 04-04PAM, 2005 WL 189708 at *1

(D. Minn. Jan. 21, 2005) (denying § 5K2.23 departure on this

basis).

E. Booker Issue

Finally, we address Kornegay's claim that he is entitled

to resentencing because the district court erroneously considered

the Guidelines as mandatory in assigning his sentence. See United

States v. Booker, 525 U.S --, 125 S. Ct. 738 (2005) (declaring

the Guidelines advisory to preserve their constitutionality).

Kornegay conceded at oral argument that he did not preserve this

argument for appeal, and therefore we review it under the plain

error test. See United States v. Antonakopoulos, 399 F.3d 68, 76-

77 (1st Cir. 2005). This test is met only where the defendant can

demonstrate a plain error that affects substantial rights, and

seriously affects the fairness, integrity or public reputation of

judicial proceedings. See id. at 77.

Kornegay has met the "plain error" portion of the test

by showing that the district court treated the Guidelines as

mandatory. See id. To meet the "affects substantial rights"

prong of the test, Kornegay must show "a reasonable probability"

that the district court would impose a more favorable sentence

under the now advisory Guidelines. Id. at 75. We are not "overly

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demanding as to proof of [such] probability where, either in the

existing record or by plausible proffer, there is a reasonable

indication that the district court judge might well have reached

a different result under advisory guidelines." United States v.

Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).

Even applying this relaxed standard, Kornegay has not

established a reasonable probability that the district court might

have given him a lesser sentence under advisory Guidelines.

Nothing about the district court's comments at sentencing

indicates that it thought that Kornegay's sentence was too harsh.

That the court sentenced Kornegay at the low end of the applicable

Guideline range is not, by itself, sufficient to show a reasonable

probability of a lesser sentence under the advisory system. See

United States v. Figuereo, 404 F.3d 537, 541-42 (1st Cir. 2005);

United States v. Cacho-Bonilla, 404 F.3d 84, 95 (1st Cir. 2005).

Kornegay has suggested that he should be resentenced

because, after Booker, there is a broader range of factors that a

court may consider in fashioning a reasonable sentence. Although

that is true, Kornegay has not proffered to this court any

"specific facts" concerning his case that he would present on

remand. See Antonakopoulos, 399 F.3d at 80. Without identifying

such facts, Kornegay has not met his burden of demonstrating that

the application of the mandatory Guidelines affected his

substantial rights.

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 III.

For the reasons stated, we affirm Andrew Kornegay's

conviction and sentence.

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