                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________  ELEVENTH CIRCUIT
                                                             JULY 25, 2005
                              No. 04-11670                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D.C. Docket No. 03-00523-CR-1-1

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

     versus

RAFAEL RETA-MENDOZA,

                                                      Defendant-Appellant.

                       __________________________

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

                               (July 25, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     We withdraw our previous opinion in this case and substitute the following

opinion in lieu thereof. Appellant Rafael Reta-Mendoza appeals his 41-month
sentence for illegal re-entry in the United States after deportation, 8 U.S.C. § 1326,

arguing that, in light of the Supreme Court’s decision in Blakely v. Washington, 542

U.S. ___, 124 S.Ct. 2531(2004), his sentence was illegal because the district court

enhanced his sentence beyond the constitutional maximum. Specifically, Appellant

contends that the district court erred in basing its enhancement on a prior conviction

that was not charged in the indictment and found by a jury beyond a reasonable

doubt.

         A Booker constitutional error occurs when a judge enhances an individual’s

sentence based solely upon judicially found facts pursuant to a mandatory guidelines

scheme. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). However, we

find no Booker constitutional error in this case. In the Supreme Court’s most recent

pronouncement in this area, United States v. Booker, ___ U.S. ___, 125 S. Ct. 738,

756, 160 L. Ed. 2d 621, 650 (2005), the Court stated that prior convictions may

support a sentence exceeding the maximum authorized by the facts established by a

plea of guilty or a jury verdict, even though they were not included in the indictment

and found by a jury beyond a reasonable doubt. (“Any 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.”); see also

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United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005) (“The Supreme Court

consistently has rejected [the] argument that a district court errs when it considers

prior convictions in sentencing a defendant under the Guidelines.”). In this case, the

district court enhanced Appellant’s sentence based on his prior convictions, and thus,

did not err.

      We now turn to whether a statutory Booker error exists because Reta-Mendoza

was sentenced pre-Booker under a mandatory Guidelines scheme. See Shelton, 400

F.3d at 1330. Because Appellant first challenged his sentence under Blakely on

appeal, we review only for plain error. See id at 1330-34 (applying plain error test

to issue of Booker statutory error raised on appeal). We must determine whether

there was “(1) error, (2) that is plain, and (3) that affects substantial rights.” United

States v. Fields, 408 F.3d 1356, 1360 (11th Cir. 2005) (quotation omitted). The first

and second prongs of the plain error test are easily satisfied. See id. Moving to the

third prong, we must determine “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.” Id. (quotation omitted).

      [I]f it is equally plausible that the error worked in favor of the defense,
      the defendant loses; if the effect of the error is uncertain so that we do
      not know which, if either, side it helped the defendant losees. Where
      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

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      is on the defendant. Where [w]e just don’t know whether the defendant
      would have received a lesser sentence if the guidelines had been
      advisory, the defendant has not met his burden of showing prejudice.

Id. (quotation omitted).

      The district court treated the Sentencing Guidelines as mandatory and it is

impossible to determine what sentence it would have imposed under an advisory

reading of the Guidelines. For example, in determining whether to treat Appellant’s

prior conviction as a violent crime or take into consideration the facts surrounding

that offense and grant a downward departure the district court stated that, “the law

[(the relevant Guideline)] is the law and I accept the law as it is and to me this does

not fall outside the heartland and I will deny the motion for a downward departure.”

The district court did, however, give Appellant a sentence in the bottom of the

Guideline range. While the district court sentenced Appellant at the bottom of the

Guideline range, this fact alone is insufficient to satisfy the Appellant’s burden to

show that the error affected his substantial rights. See Fields, 408 F.3d at 1360-61

(holding that appellant’s sentence at the bottom of the Guideline range alone was not

enough to satisfy the third prong of the plain error test). Instead, “the fact that the

district court sentenced the defendant to the bottom of the applicable guidelines range

establishes only that the court felt that the sentence was appropriate under the

mandatory guidelines system[;] [i]t does not establish a reasonable probability that

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the court would have imposed a lesser sentence under an advisory regime.” Id. at

1361. Thus, Appellant cannot satisfy the third prong of the plain error test.

      For the foregoing reasons, we affirm Appellant’s sentence.

      AFFIRMED.




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