                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 04-10867                         FILED
                                                              U.S. COURT OF APPEALS
                              Non-Argument Calendar             ELEVENTH CIRCUIT
                            ________________________                August 2, 2005
                                                          THOMAS K. KAHN
                    D. C. Docket No.   03-00039-CR-4-RH-WCS   CLERK


UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

FELIPE ARELLANO,

                                                                Defendant-Appellant.
                            ________________________

                    Appeal from the United States District Court
                        for the Northern District of Florida
                          _________________________
                                 (August 2, 2004)


Before BLACK, MARCUS, and PRYOR, Circuit Judges.

PER CURIAM:

      Felipe Arellano appeals his 108-month sentence, imposed after he pled

guilty, pursuant to a written plea agreement, to conspiring to distribute and to

possess with intent to distribute more than 50 kilograms of marijuana, in violation
of 21 U.S.C. § 846, and possessing with intent to distribute more than 50 kilograms

of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). On appeal, Arellano

argues that the district court violated his Sixth Amendment right to have a jury

determine beyond a reasonable doubt (1) the quantity of marijuana involved, (2)

his role in the offense, and (3) allegations of spousal abuse and battery, none of

which were charged in the indictment, as required by United States v. Booker, 543

U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621(2005).1 After thorough review of the

record and the parties’ briefs, we affirm.

        Because Arellano failed to raise his Booker challenge in the district court,

we review his claim for plain error. See United States v. Williams, 408 F.3d 745,

748 (11th Cir. 2005). We will correct plain error only where (1) there is an error;

(2) the error is plain or obvious; (3) the error affects the defendant’s substantial


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            We summarily reject Arellano’s additional argument, that the district court erred by
adding one point to his criminal history score, pursuant to U.S.S.G. § 4A1.2(c), based on a prior
conviction in Florida state court for petit theft, to which he pled no contest in abstentia and was fined
$500. He argues that this prior conviction was obtained without the assistance of counsel, or a valid
wavier of his right to counsel. The commentary to § 4A1.2 specifically indicates that “[prior
sentences, not otherwise excluded, are to be counted in the criminal history score, including
uncounseled misdemeanor sentences where imprisonment was not imposed.” U.S.S.G. § 4A1.2,
background comment. (emphasis added). An indigent defendant charged with a misdemeanor has
the right to an attorney where the defendant is sentenced to a term of imprisonment. Scott v. Illinois,
440 U.S. 367, 373-74, 99 S. Ct. 1158, 1162, 59 L. Ed. 2d 383 (1979). Conversely, “where no
sentence of imprisonment was imposed, a defendant charged with a misdemeanor ha[s] no
constitutional right to counsel.” Nichols v. United States, 511 U.S. 738, 743, 114 S. Ct. 1921, 1925,
128 L. Ed. 2d 745 (1994) (citing Scott, 440 U.S. 367, 99 S. Ct. 1158). The Supreme Court has held
that an “uncounseled misdemeanor conviction, valid under Scott because no prison term was
imposed, is also valid when used to enhance punishment at a subsequent conviction.” Nichols, 511
U.S. at 748-49, 114 S. Ct. at 1768. Accordingly, Arellano’s argument on this point is unpersuasive.

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rights in that it was prejudicial and not harmless; and (4) the error seriously affects

the fairness, integrity, or public reputation of a judicial proceeding. See United

States v. Chisholm, 73 F.3d 304, 307 (11th Cir. 1996).

      In Booker, the Supreme Court held that the mandatory nature of the

Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s

guarantee of a right to a jury trial. Booker, 543 U.S. at ___,125 S. Ct. at 749-51.

“The holding in Booker is that the Sixth Amendment right to trial by jury is

violated 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.” United States v. Rodriguez, 398

F.3d 1291, 1298 (11th Cir.), cert. denied, (U.S. Jun 20, 2005) (No. 04-1148).

After Booker, we have held that, where, at sentencing, a defendant abandons his

objections to the Presentence Investigation Report (“PSI”), no Sixth Amendment

violation under Booker occurs, as the defendant’s waiver of his objections

constituted an admission of the facts in the PSI. United States v. Burge, 407 F.3d

1183, 1191 (11th Cir. 2005).

      At sentencing, Arellano abandoned his challenges to the drug quantity by

agreeing to a base offense level of 28, based on an amount of marijuana between

400 and 700 kilograms. He also abandoned his challenge to the role enhancement



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when he stated that he was not going to contest it, in return for the government’s

recommendation of a sentence reduction for acceptance of responsibility. Thus, he

admitted these facts and cannot satisfy the first prong of plain error, for purposes of

establishing Booker constitutional error. See Burge, 407 F.3d at 1190. Moreover,

Arellano’s claim that the district court violated his Sixth Amendment rights by

enhancing his sentence based on his past alleged spousal abuse is without merit,

since the district court expressly stated that it was not considering the alleged

abuse. The district court’s stated intention is reflected in the court’s sentencing

Arellano to 108 months, the lowest possible sentence. Accordingly, Arellano’s

sentence was not enhanced based on facts that he did not admit, and there was no

Sixth Amendment violation.

      We have held that, even in the absence of a constitutional error under

Booker, there remains statutory error where a district court imposes a sentence

under the formerly binding, mandatory guidelines. United States v. Shelton, 400

F.3d 1325, 1330-31 (11th Cir. 2005). However, here, like in Rodriguez and Burge,

appellant has not satisfied the third prong of plain error review, which requires him

to show “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.” Rodriguez, 398 F.3d at 1301. Where “[t]he record provides no reason to



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believe any result is more likely than the other,” a defendant cannot prevail under

plain error review. Id.

      The district court did not commit reversible plain error by sentencing

Arellano under a mandatory guideline system. The record reveals no inclination

on the part of the district court that Arellano’s sentence was too high, or that the

court felt constrained by the mandatory nature of the guidelines. Even though

Arellano was sentenced at the lowest end of the guidelines, we have held that this

fact, without more, is not enough to meet the third prong of plain error review. See

United States v. Fields, 408 F.3d 1356, 1360-61 (11th Cir. 2005). Simply put,

Arellano has not met his burden as to the third prong of the plain error test as to

Booker non-constitutional error: he cannot show 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 in this case.” Rodriguez, 398

F.3d at 1301; accord United States v. Dowling, 403 F.3d 1242 (11th Cir. 2005).

      In sum, because the calculation of Arellano’s sentence was based only on

facts admitted by him, and he has failed to show that there is a reasonable

probability that the district court’s error in sentencing him under a mandatory

sentencing system affected the outcome of his sentence, he has not shown plain

error based on Booker.



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AFFIRMED.




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