                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            JUNE 29, 2007
                             No. 06-16589                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 02-00345-CR-UWC-HGD

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

ARTURO ZAVALA,

                                                     Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                              (June 29, 2007)


Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Arturo Zavala appeals his 262-month sentence for conspiracy to possess

with the intent to distribute more than 500 grams of methamphetamine, in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. On appeal, Zavala argues that the

district court plainly erred in sentencing him under a mandatory Sentencing

Guidelines scheme, where the court acknowledged that the sentence was too long.

For the reasons discussed more fully below, we vacate Zavala’s sentence and

remand to the district court for further proceedings.

      In January 2003, Zavala pled guilty to the above-mentioned offense. At

sentencing, the district court found that Zavala’s offense level was 39, his criminal

history category was I, and his resulting guideline range was 262 to 327 months’

imprisonment. Thereafter, the court stated to Zavala that “[t]he sentence that I’m

going to have to impose on you, I think, is too long. But I don’t have any

discretion in that matter.” The court then sentenced Zavala to 262 months’

imprisonment.

      In November 2003, Zavala timely appealed his conviction and sentence.

However, we dismissed for want of persecution because Zavala failed to timely file

an appellate brief and record excerpts. In July 2005, Zavala filed a motion to

vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. The

magistrate judge recommended granting the § 2255 motion as to Zavala’s claim



                                          2
that his counsel was ineffective for failing to pursue his direct appeal. The

magistrate also recommended that Zavala be appointed counsel, resentenced in

accordance with United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000) 1,

and permitted to take an out-of-time appeal. The district court adopted and

affirmed the magistrate’s recommendation.

       At resentencing, the court acknowledged that, when it initially sentenced

Zavala, it believed that the sentence was unfair and too high, but that it had no

discretion in the matter at that time. The court further acknowledged that it now

had discretion in sentencing, but because of the procedural posture of Zavala’s

case, in that he was being resentenced under Phillips and was required to received

the same sentence as he received initially, the court stated that it could only

reinstate the previous sentence. The court also indicated that, upon remand from

this Court, it intended “to sentence him to a significantly lesser term . . . than he



       1
           In Phillips, this Court held that:

       When the district courts of this circuit conclude that an out-of-time appeal in a
       criminal case is warranted as the remedy in a § 2255 proceeding, they should
       effect that remedy in the following way: (1) the criminal judgment from which
       the out-of-time appeal is to be permitted should be vacated; (2) the same sentence
       should then be reimposed; (3) upon reimposition of that sentence, the defendant
       should be advised of all the rights associated with an appeal from any criminal
       sentence; and (4) the defendant should also be advised that the time for filing a
       notice of appeal from that re-imposed sentence is ten days . . . .

Phillips, 225 F.3d at 1201.

                                                3
was initially sentenced.” The court thus sentenced Zavala to 262 months’

imprisonment.

       On appeal, Zavala argues, and the government agrees, that the district court

plainly erred in imposing the sentence. Zavala did not raise this claim before the

district court and, thus, we will review only for plain error. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain error review, there

must be (1) an error, (2) that is plain, and (3) affects substantial rights. Id. When

these three factors are met, we may then exercise our discretion and correct the

error if it seriously affects the fairness, integrity, or public reputation of the judicial

proceedings. Id.

       Zavala was sentenced under the pre-Booker2 mandatory Guidelines scheme.

Under Booker, “error exists when the district court misapplies the Guidelines by

considering them as binding as opposed to advisory.” United States v. Shelton,

400 F.3d 1325, 1331 (11th Cir. 2005). Here, error existed because the district

court clearly applied the Guideline in a mandatory fashion. The error was plain

because, as we concluded in Shelton, “Booker made plain the district court’s error

in sentencing [a defendant] under a mandatory Guidelines scheme that is now

advisory.” Shelton, 400 F.3d at 1331. Thus, Zavala’s case meets the first two



       2
           United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)

                                                 4
prongs of plain error review.

      Under the third prong, Zavala must demonstrate that the error affected his

substantial rights. “[I]n post-Booker sentencing cases, in applying the third prong,

we ask whether 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 in this case.” Shelton, 400 F.3d at 1332 (quotation omitted). “A

reasonable probability of a different result means a probability sufficient to

undermine confidence in the outcome.” Id. (quotation omitted). Review of the

record in Zavala’s case indicates that the court would have imposed a lower

sentence had it not felt bound by the Guidelines. First, the court expressed an

opinion that it believed the sentence was “too long.” Moreover, the court

ultimately sentenced Zavala to the lowest sentence allowable under his Guideline

range. Additionally, at resentencing, the court again acknowledged that it believed

the sentence was “unfair” and that, upon remand from this Court, it intended to

sentence him to a lesser sentence than was initially imposed. Therefore, Zavala

established that the error affected his substantial rights because, had he been

sentenced under an advisory Guidelines scheme, there is a reasonable probability

that he would have received a lesser sentence.

      Finally, Zavala also has met the fourth prong of plain error review. The



                                           5
court expressed a clear desire to impose a lesser sentence than the mandatory

Guidelines permitted, and, since Zavala’s initial sentencing, the Supreme Court has

said that such a consideration of the Guidelines as advisory is permissible. See

Shelton, 400 F.3d at 1333-34 (holding that, under similar circumstances, the

defendant had established plain error that affected the fairness, integrity, or public

reputation of the proceedings). Under these circumstances, Zavala has

demonstrated plain error by the district court and that the error seriously affected

the fairness, integrity, or public reputation of his judicial proceedings.

Accordingly, we vacate Zavala’s sentence and remand to the district court for

resentencing consistent with Booker.

      VACATED AND REMANDED.




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