United States v. Gonzalez-Mercado

United States Court of Appeals
For the First Circuit

No. 03-2173

UNITED STATES OF AMERICA,

Appellee,

v.

GERMÁN GONZÁLEZ-MERCADO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Rafael F. Castro Lang for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney (Senior
Appellate Attorney), with whom H. S. Garcia, United States
Attorney, and Sonia I. Torres-Pabón, Assistant United States
Attorney (Chief, Criminal Division), were on brief, for appellee.

April 1, 2005
 SELYA, Circuit Judge. On March 3, 2003, defendant-

appellant Germán González-Mercado pleaded guilty to three counts of

carjacking and two counts of aggravated carjacking (i.e.,

carjacking resulting in serious bodily injury). See 18 U.S.C.

§ 2119(1), (2). The district court sentenced him to a total of 600

months in prison. On appeal, González-Mercado seeks to challenge

the validity of his guilty pleas, the legal sufficiency of the

evidence underpinning his conviction on one of the five counts, and

his sentence. Concluding, as we do, that these assignments of

error are meritless, we affirm the judgment below.

I. BACKGROUND

On January 30, 2002, a federal grand jury sitting in the

District of Puerto Rico returned an indictment charging the

appellant with three counts of aiding and abetting carjackings in

violation of 18 U.S.C. §§ 2, 2119(1) and two counts of aiding and

abetting aggravated carjackings in violation of 18 U.S.C. §§ 2,

2119(2). The indictment alleged that the appellant and his

confederates had appropriated five motor vehicles. Specifically,

count one charged that the appellant and Miguel Alamo Castro

(Alamo) carjacked a Toyota Echo on December 31, 2001; count two

charged that the appellant, Alamo, and Ismael Ortega Santana

(Ortega) carjacked a Nissan Xterra on January 10, 2002; count three

charged that the appellant and Alamo carjacked a Chevrolet Cavalier

on January 14, 2002; count four charged that the appellant and

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Alamo carjacked a Nissan Pathfinder on the same date; and count

five charged that the appellant and Ortega carjacked a Mitsubishi

Montero on January 24, 2002. In two instances (counts one and

three), the indictment further charged that the carjackings had

resulted in serious bodily injury in violation of 18 U.S.C.

§ 2119(2).

The appellant initially maintained his innocence. He

subsequently moved both to change his pleas and to dismiss count

three insofar as it charged aggravated carjacking. In a memorandum

accompanying the motion to dismiss, he argued that the incident

giving rise to the "serious bodily injury" allegation — the rape of

a woman known as G.K.L. — did not suffice to trigger liability for

aggravated carjacking. The appellant's thesis ran as follows. The

crime of carjacking requires, inter alia, the taking of a motor

vehicle "from the person or presence of another by force and

violence or by intimidation." 18 U.S.C. § 2119. If, however,

"serious bodily injury . . . results," the crime becomes aggravated

carjacking, a separate and distinct offense punishable under the

heightened penalty provisions contained in 18 U.S.C. § 2119(2).

While the appellant concedes that rape qualifies as a serious

bodily injury within the purview of section 2119(2), see United

States v. Vazquez-Rivera, 135 F.3d 172, 174-75 (1st Cir. 1998), he

argues that the rape of G.K.L. was independent of, and thus did not

"result" from, the taking of a motor vehicle.

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 The question of a change of plea was held in abeyance

pending the disposition of the motion to dismiss. The parties

stipulated to the facts underlying count three. We summarize them

here.

On January 14, 2002, Alamo and the appellant, aiding and

abetting one another, took a Chevrolet Cavalier from Gerald Morales

by means of force and intimidation (including the brandishing of

what appeared to be firearms). With Morales and Morales's

passenger, Héctor Berrios, in the vehicle and the appellant at the

wheel, the carjackers drove to various ATM machines and forced

Morales at gunpoint to withdraw cash from his account. When that

source of funds had been exhausted, Morales, in response to the

appellant's demands, indicated that he had keys to G.K.L.'s

apartment and that the carjackers might be able to obtain more

money there. Intrigued by this possibility, the carjackers drove

to the apartment complex. Upon their arrival, they locked Berrios

(whose hands had been tied with his own shoelaces) in the trunk of

Morales's automobile. The appellant retained the car keys.

Morales escorted the carjackers into G.K.L.'s apartment.

The men entered G.K.L.'s bedroom and awoke her, demanding money.

She replied that she had no cash and did not possess an ATM card.

At that point, Alamo and Morales receded into the living room, but

the appellant remained behind and raped G.K.L. When the appellant

emerged from the bedroom, the trio departed with G.K.L.'s cell

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phone and several bottles of wine. They then forced Berrios, at

gunpoint, to direct them to his car (a Nissan Pathfinder). Once

there, the appellant and Alamo perfected another carjacking (which

became the subject of count four of the indictment). The

carjackers did not release Morales and Berrios until they had made

an unsuccessful attempt to empty Berrios's bank account.

Taking these facts into account, the district court, in

an unpublished order, denied the motion to dismiss count three. In

so ruling, the court rejected the appellant's contention that

because G.K.L. was neither the owner of the carjacked vehicle nor

physically present at the time of the carjacking, the rape could

not be said to "result" from the carjacking offense. The court

noted that in Vazquez-Rivera, we held that "injuries covered [by

section 2119(2)] are not limited to those resulting from the

'taking' of a vehicle, but also include those caused by the

carjacker at any point during his or her retention of the vehicle."

Id. at 178. In the district court's view, that principle applied

because, at the time of the rape, the appellant was still in

retention of the carjacked vehicle, he kept the keys in his pocket,

he had a victim trapped in the car's trunk, and he held the car's

owner under his command. Thus, the serious bodily injury endured

by G.K.L. could be said to "result" from the carjacking, as

required by the statute.

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 Following the denial of his motion to dismiss, the

appellant reactivated his motion for a change of plea. After some

skirmishing, not relevant here, the district court conducted a

hearing on March 3, 2003. The change-of-plea colloquy was

thorough. Significantly, the appellant admitted during that

colloquy that he and Alamo had placed Berrios in the trunk of

Morales's vehicle; that he had retained the keys to the car during

his visit to G.K.L.'s abode; and that, while in possession of the

keys and in control of Berrios and Morales, he raped G.K.L. Based

on these admissions, the district court permitted the appellant to

enter a plea of guilty to count three as well as to the other four

counts of the indictment. The court also ordered the preparation

of a presentence investigation report (PSI Report) and set the case

for sentencing.

On June 16, 2003, the district court convened the

disposition hearing. The court ascertained that defense counsel

had discussed the PSI Report with the appellant and fully explained

its contents to him. The appellant acknowledged that he understood

what the report said. For all intents and purposes, the defense

raised no objections to the PSI Report.1 The court then stated

that, in the absence of any material objections to the PSI Report,

it would adopt the findings contained therein.

1
The only misgiving that defense counsel voiced was an
extremely minor correction to the report that had nothing to do
with any of the issues on appeal.

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 The court calculated a guideline sentencing range of 360

months to life (total offense level — 40; criminal history category

— III). It sentenced the appellant to serve 600 months in prison,

imposing consecutive 300-month terms for each of counts one and

three, and concurrent 180-month terms for each of counts two, four,

and five. Individually, each of these terms represented the

statutory maximum for the offense of conviction. See 18 U.S.C.

§ 2119(2) (setting a twenty-five-year maximum for aggravated

carjacking); id. § 2119(1) (setting a fifteen-year maximum for

simple carjacking). The court also ordered a supervised release

term of five years, a special assessment of $500, and restitution

in the amount of $5,950. This timely appeal followed.

II. ANALYSIS

González-Mercado seeks to challenge the validity of his

guilty pleas, his conviction on count three, and his sentence. We

consider each challenge in turn.

A. The Validity of the Guilty Pleas.

In supplemental briefing and a letter submitted pursuant

to Fed. R. App. P. 28(j), the appellant maintains that his pleas as

to all five counts must be set aside because they were not entered

in conformity with Fed. R. Crim. P. 11. To elaborate, he insists

that his pleas were not tendered intelligently because they were

based upon a mistaken understanding of the operation of the federal

sentencing guidelines. Although a guilty plea waives most claims

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of error, it does not preclude an attack on the voluntary and

intelligent character of the plea itself. See Tollett v.

Henderson, 411 U.S. 258, 267 (1973).

This claim derives from the Supreme Court's recent

decision in United States v. Booker, 125 S. Ct. 738 (2005). The

Booker Court held that "[a]ny fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt," id. at 756, insofar as the sentence is

imposed under a mandatory guideline regime, see id. at 756-57, 767-

68. The appellant posits that his guilty pleas are invalid because

they were not informed by that holding (and, thus, were tendered on

the erroneous assumption that the sentencing guidelines were

mandatory).

We have heard and rejected this argument before. See

United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005) (holding

that "the possibility of a favorable change in the law occurring

after a plea is one of the normal risks that accompany a guilty

plea"); see also Brady v. United States, 397 U.S. 742, 757 (1970)

(stating that "a voluntary plea of guilty intelligently made in

light of the then applicable law does not become vulnerable because

later judicial decisions indicate that the plea rested on a faulty

premise"). Under the doctrine of stare decisis, then, the issue is

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foreclosed. See Eulitt v. Me. Dep't of Educ., 386 F.3d 344, 348

(1st Cir. 2004) (explaining that "the doctrine of stare decisis

precludes the relitigation of legal issues that have previously

been heard and authoritatively determined"); Gately v.

Massachusetts, 2 F.3d 1221, 1226 (1st Cir. 1993) (stating that

stare decisis "renders the ruling of law in a case binding in

future cases before the same court or other courts owing obedience

to the decision"). As we explained in Sahlin, 399 F.3d at 31, the

Booker decision, in and of itself, does not undermine the validity

of the appellant's guilty pleas.

B. The Conviction on Count Three.

The appellant's next attack is more narrowly focused. He

asseverates that the district court erred in imposing a 300-month

sentence on count three because the sexual assault of G.K.L. did

not "result" from the Morales carjacking. This asseveration rests

on the premise that the district court should have sentenced the

appellant in accordance with section 2119(1), which defines the

crime of simple carjacking and caps sentences at fifteen years,

rather than section 2119(2), which defines the crime of aggravated

carjacking (i.e., carjacking resulting in serious bodily injury)

and caps sentences at twenty-five years.

This argument is beset with problems. Most prominently,

it ignores the decision in Jones v. United States, 526 U.S. 227

(1999), in which the Supreme Court held that section 2119 does not

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define a single crime with a choice of penalties dependent on

sentencing factors but, rather, "establish[es] three separate

offenses [section 2119(1), section 2119(2), and section 2119(3)] by

the specification of distinct elements, each of which must be

charged by indictment, proven beyond a reasonable doubt, and

submitted to a jury for its verdict," id. at 252. Just as the

Jones Court recognized that a defendant found guilty of an offense

under section 2119(1) could not be sentenced under section 2119(2),

see id. at 229, so too we recognize that a defendant who pleads

guilty to a violation of section 2119(2) cannot claim an

entitlement to be sentenced under the more forgiving penalty

provisions of section 2119(1).

This is an important distinction for the purposes of this

case. 18 U.S.C. § 2119 contains three separate sections, defining

three separate crimes (we have not mentioned section 2119(3)

because that provision has no bearing on this case). Inasmuch as

the three sections of 18 U.S.C. § 2119 limn separate offenses, the

appropriate forum for contesting the applicability of any one

section to the facts of a particular case is the guilt phase of the

proceeding — not the sentencing phase.

Here, however, the appellant bypassed that opportunity by

electing to enter an unconditional guilty plea. That plea waived

all non-jurisdictional challenges to the resulting conviction under

section 2119(2), save claims that the plea was not knowing and

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voluntary. See United States v. Rodriguez-Castillo, 350 F.3d 1, 4

(1st Cir. 2003) ("An unconditional guilty plea waives any and all

independent non-jurisdictional claims arising out of alleged errors

antedating the plea."); United States v. Cordero, 42 F.3d 697, 698

(1st Cir. 1994) (observing that "an unconditional guilty plea

insulates virtually all earlier rulings in the case from appellate

review").

The appellant tries to parry this thrust in two different

ways. First, he notes that he did raise a challenge to the

applicability of section 2119(2) in his motion to dismiss count

three. That is true as far as it goes, but it does not go very

far. The appellant failed to preserve the issue for review when he

entered an unconditional guilty plea to count three. He could have

attempted to avail himself of the procedure described in Fed. R.

Crim. P. 11(a)(2), which allows a criminal defendant, with the

consent of the court and the government, to preserve the right to

appeal an adverse determination on a specific pretrial motion by

entering a conditional guilty plea, but he did not do so. Under

these circumstances, his motion to dismiss died a natural death and

he cannot now resurrect it.

The appellant also seeks, albeit somewhat perfunctorily,

to make an end run around the waiver that normally would flow from

the entry of an unconditional guilty plea. The waiver doctrine

does not apply to jurisdictional claims, see Cordero, 42 F.3d at

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699, so the appellant labors to cast his challenge to the

conviction on count three as jurisdictional in nature. He argues,

in effect, that the stipulated facts do not establish a necessary

element of the offense, namely, that the rape resulted from the

carjacking and that, because the admitted conduct does not amount

to a violation of the statute of conviction, the district court

lacked jurisdiction to convict him.

The most gaping hole in this argument is that it cannot

properly be classified as jurisdictional (and, therefore, as

subject to review notwithstanding the appellant's unconditional

guilty plea). In arguing to the contrary, the appellant clings to

United States v. Rosa-Ortiz, 348 F.3d 33 (1st Cir. 2003), in which

we recognized that a "guilty plea does not preclude [a defendant]

from arguing on appeal that the statute of conviction does not

actually proscribe the conduct charged in the indictment," id. at

36. We added that "a federal court has jurisdiction to try

criminal cases only when the information or indictment alleges a

violation of a valid federal law," id. (quoting United States v.

Saade, 652 F.2d 1126, 1134 (1st Cir. 1981)), and that

"jurisdictional challenges to an indictment may be raised at any

time," regardless of the defendant's guilty plea, id.

The case at hand is a horse of a different hue. The

appellant has not argued that the district court lacked authority

to hear the case in the first instance because the indictment

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failed to charge a cognizable federal offense. Nor could such an

argument prevail. Each of the five counts charged crimes within

the competence of the district court; count three charged in plain

terms that a carjacking occurred, which "result[ed] in serious

bodily injury" by reason of the appellant's sexual assault of

G.K.L. That language sufficiently alleged a violation of section

2119(2). This is dispositive of the appellant's argument because,

with few exceptions (none applicable here), "a federal criminal

case is within the subject matter jurisdiction of the district

court if the indictment charges . . . that the defendant committed

a crime described in [a federal criminal statute]." United States

v. González, 311 F.3d 440, 442 (1st Cir. 2002).

Even if the appellant's allegation that the admitted

facts are insufficient as a matter of law to satisfy the "results"

element of aggravated carjacking were accurate — and we doubt that

it is2 — that allegation would not raise a cognizable

jurisdictional defect. In United States v. Valdez-Santana, 279

F.3d 143 (1st Cir. 2002), we rebuffed an attempt to shoehorn what

was, in essence, a contention that admissible evidence could not

establish a violation of the charged crime into the "narrow

exception" that only jurisdictional issues may be appealed

2
This court's precedents interpreting 18 U.S.C. § 2119(2)
strongly suggest that the appellant's rape of G.K.L. falls within
the statutory sweep. See, e.g., United States v. Lowe, 145 F.3d
45, 52-53 (1st Cir. 1998); Vazquez-Rivera, 135 F.3d at 178.

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following an unconditional guilty plea. Id. at 145-46. That

holding followed inexorably from our statement in Cordero, 42 F.3d

at 699, in which we said that "a jurisdictional defect is one that

calls into doubt a court's power to entertain a matter, not one

that merely calls into doubt the sufficiency or quantum of proof

relating to guilt." See also United States v. Cruz-Rivera, 357

F.3d 10, 14 (1st Cir. 2004) (noting that the characterization of

the argument that the factual underpinnings of a guilty plea do not

establish an element of the offense as a jurisdictional challenge

"confuses the constitutional limits on Congress's power with the

jurisdiction of the federal courts"); González, 311 F.3d at 443

(determining that the category of jurisdictional defects that are

not waived by a guilty plea does not include "routine questions as

to the reach and application of a criminal statute" because such

questions have "nothing whatever to do with the subject matter

[jurisdiction] of the federal district court"). These precedents

are controlling here.

To say more on this issue would be to paint the lily. We

find, without serious question, that the appellant's argument that

his admitted conduct does not satisfy the "results" element of

section 2119(2) is not jurisdictional in nature. Consequently,

further consideration of it is foreclosed by the appellant's

unconditional guilty plea.

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 C. Alleged Sentencing Errors.

The entry of an unconditional guilty plea does not itself

waive challenges to the ensuing sentence. Sahlin, 399 F.3d at 32.

Here, the appellant advances two such challenges. We consider them

separately.

1. Enhancement for Serious Bodily Harm. The appellant

suggests that the district court erred when it applied a four-level

enhancement to his adjusted offense level on count three. See USSG

§2B3.1(b)(3) (allowing for the disputed enhancement "[i]f any

victim sustained [serious] bodily injury" in the course of the

carjacking). This is too late and too little.

The suggestion is too late because the appellant neither

interposed an objection to the PSI Report (which recommended the

application of the enhancement) nor argued against the enhancement

at sentencing. At best, then, the point has been forfeited, and

review would be limited to plain error. See United States v.

Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).

In this instance, even plain error review is unavailable

because the suggestion is not only too late but also too little.

On appeal, González-Mercado has not offered any developed

argumentation as to why it was error, let alone plain error, for

the sentencing court to apply section 2B3.1(b)(3). This omission

is all the more stark because the appellant admitted below that he

raped G.K.L. while the carjacking was ongoing, that is, while

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retaining control over both the carjacked vehicle and its occupants

(Morales and Berrios).3 This failure must be deemed a waiver.

See, e.g., Muñiz v. Rovira, 373 F.3d 1, 8 (1st Cir. 2004) ("It is

a bedrock appellate rule that issues raised perfunctorily, without

developed argumentation, will not be considered on appeal.");

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (similar).

2. Booker Claim. Before us, the appellant raises for

the first time a challenge to his sentence premised upon the

district court's alleged error in making certain adjustments to the

offense levels used to calculate his sentence under a preponderance

of the evidence standard.4 These include a four-level "grouping"

adjustment, see USSG §3D1.4; a two-level role-in-the-offense

enhancement, see id. §3B1.1(c); the previously discussed four-level

"serious bodily injury" enhancement, see id. §2B3.1(b)(3)(B); and

3
If and to the extent that the appellant intended to rely on
his argument that under 18 U.S.C. § 2119(2) the rape did not result
from the carjacking, see supra Part II(B), his reliance is
misplaced. The applicable guideline does not track the language of
the statute; instead, it covers serious bodily injury to "any
victim." USSG §2B3.1(b)(3). It is hard to conceive of any
interpretation of the phrase "any victim" that would exclude G.K.L.
in the circumstances of this case. Cf. United States v. Hughes,
211 F.3d 676, 691 (1st Cir. 2000) (concluding that the indefinite
reference to "victims" in USSG §2B3.2(c)(1) contemplates all
victims of an extortion scheme, not merely the target of the
extortionate demand).
4
The appellant also claims that the sentencing court made an
impermissible upward departure. This claim is frivolous. The
guideline sentencing range was 360 months to life, and the court
sentenced the appellant within that range.

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a one-level enhancement for amount of loss, see id.

§2B3.1(b)(7)(B).5

The appellant did not object to any of these adjustments

below. In this court, however, he took the position that Blakely

v. Washington, 124 S. Ct. 2531 (2004), prohibited them. Subsequent

to filing his brief, he submitted a letter under Fed. R. App. P.

28(j), in which he augmented this contention with a general

reference to Booker. He concedes that his Blakely/Booker challenge

— for simplicity's sake, we henceforth refer to this as a claim of

Booker error — was not preserved below and that, at most, he is

entitled to plain error review. See United States v. Olano, 507

U.S. 725, 731-32 (1993); United States v. Antonakopoulos, 399 F.3d

68, 76 (1st Cir. 2005).

The plain error test is rigorous. We have stated that:

Review for plain error entails four showings:
(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the
defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or
public reputation of judicial proceedings.

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The

appellant must carry the devoir of persuasion on all four facets of

the test. See Antonakopoulos, 399 F.3d at 77.

5
Some of these adjustments applied to fewer than all of the
counts. For present purposes, however, such differentiations do
not matter.

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 In this case, the first two elements present no problem.

There is a Booker error, although it is not any of the alleged

errors that the appellant identifies.6 Booker teaches that the

imposition of sentencing enhancements under a mandatory guidelines

regime is erroneous. See Booker, 125 S. Ct. at 750, 756-57. Thus,

a Booker error has occurred when a sentencing court has treated the

guidelines as mandatory rather than as advisory. As we said in

Antonakopoulos:

The Booker error is that the defendant's
Guidelines sentence was imposed under a
mandatory system. The error is not that a
judge (by a preponderance of the evidence)
determined facts under the Guidelines which
increased a sentence beyond that authorized by
the jury verdict or an admission by the
defendant; the error is only that the judge
did so in a mandatory Guidelines system.

6
Had the district court erred in making the factual findings
underlying these upward adjustments and, as a result, misapplied
guideline enhancements in a way that increased the appellant's
sentence, such errors would require resentencing even under our
pre-Booker precedents. United States v. Serrano-Beauvaix, ___ F.3d
___, ___ (1st Cir. 2005) [No. 02-2286, slip op. at 7]. Here,
however, the appellant does not specifically contest the factual
basis for any of the enhancements, and it appears that the
sentencing court had a solid factual basis for imposing them. The
grouping, leadership role, and serious bodily injury enhancements
were premised on facts that the appellant admitted during the
change-of-plea colloquy and reaffirmed through his acquiescence in
the PSI Report. The remaining enhancement was based upon a finding
that the amount of loss exceeded $10,000 per count. While
admissions of record do not directly cover this point, the
appellant, by his own acknowledgment, carjacked five late-model
vehicles. We think it likely that the value of each vehicle
exceeded $10,000 — and the appellant has not even hinted to the
contrary. Consequently, in a pre-Booker world, there was no plain
error in ordering the upward adjustments.

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399 F.3d at 75. For purposes of this case, the Booker error must

be regarded as plain. See Johnson v. United States, 520 U.S. 461,

468 (1997) (stating that "it is enough that the error be 'plain' at

the time of appellate consideration").

It is at step three of the plain error pavane that the

appellant's argument stumbles. That prong requires a showing that

the error affected substantial rights. Duarte, 246 F.3d at 60. In

regard to unpreserved Booker errors, our main third-prong concern

is with the likelihood that the district court might have sentenced

the defendant more leniently in a post-Booker world in which the

guidelines are only advisory. See United States v. Heldeman, ___

F.3d ___, ___ (1st Cir. 2005) [No. 04-1915, slip op. at 7];

Antonakopoulos, 399 F.3d at 75. The standard is one of "reasonable

probability." Antonakopoulos, 399 F.3d at 78-79.

The appellant has not shown a reasonable probability —

not even a possibility — that the district court would have imposed

a different (more lenient) sentence had it understood that the

sentencing guidelines were advisory rather than mandatory. That is

fatal to his Booker claim. See id. at 75; see also id. at 77

(noting that the defendant bears the burden of persuasion with

regard to the element of prejudice). In this regard, it is

especially significant that, at oral argument — conducted after

this court had handed down its decision in Antonakopoulos — the

appellant's counsel did not advance any viable theory as to how the

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Booker error had prejudiced his client's substantial rights. Nor

does anything in the record suggest a basis for such an inference.

To cinch matters, we note that the guidelines, without

any downward departure, would have allowed the court to impose an

aggregate sentence as low as 360 months for the grouped counts.

The court spurned that option and chose to sentence the appellant

to nearly double that amount of prison time — a total of 600

months. The court explained that a sentence at the low end of the

range would ignore the horrific details of the specific offense

conduct and "depreciate the overall harm to the victims." When,

under a mandatory guidelines regime, a sentencing court has elected

to sentence the defendant substantially above the bottom of the

range, that is a telling indication that the court, if acting under

an advisory guidelines regime, would in all likelihood have imposed

the same sentence. See United States v. Pratt, No. 04-30446, 2005

WL 629824, at *6 (5th Cir. Mar. 18, 2005) (per curiam) (finding

that the district court's imposition of a sentence one year longer

than the minimum required under the guideline range contradicted

the defendant's effort to show a reasonable probability that he

would have received a lower sentence under an advisory guideline

regime); United States v. Lee, 399 F.3d 864, 867 (7th Cir. 2005)

(indicating confidence that defendant's substantial rights were not

affected by the mandatory guideline regime because the district

court had imposed the maximum available sentence).

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 The sentence here is reasonable and, for the reasons

stated above, we reject the appellant's request to vacate it on

Booker grounds.

III. CONCLUSION

We need go no further. Discerning no merit in the

appellant's various challenges, we affirm his convictions and

sentence.

Affirmed.

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