                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                        FOR THE ELEVENTH CIRCUIT
                                                   U.S. COURT OF APPEALS
                          ________________________   ELEVENTH CIRCUIT
                                                               September 30, 2005
                                 No. 04-15158                 THOMAS K. KAHN
                             Non-Argument Calendar                CLERK
                           ________________________

                       D. C. Docket No. 04-20311-CR-JLK

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

GERMANN GUILLERMO GOODING MUNOZ,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                              (September 30, 2005)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

      Germann Guillermo Gooding Muñoz appeals his sentence for importation

into the United States of one kilogram or more of heroin in violation of 21 U.S.C.
§§ 952(a) and 960(b)(1). Gooding argues for the first time on appeal that under

United States v. Booker, 125 S. Ct. 738 (2005), the district court erroneously

imposed a Guideline-mandated minimum term of imprisonment. Gooding also

contends the sentencing court erred in denying a role reduction under U.S.S.G.

§ 3B1.2. We affirm Gooding’s sentence.

                                  I. DISCUSSION

A. Booker

      In Booker, issued after Gooding was sentenced, the Supreme Court held the

Guidelines are an advisory, rather than a mandatory, regime. See Booker, 125 S.

Ct. at 764–65. Under Booker, there are two kinds of sentencing errors:

constitutional and statutory. A constitutional error is “the use of extra-verdict

enhancements to reach a [G]uidelines result that is binding on the sentencing

judge; the error is the mandatory nature of the [G]uidelines once the [G]uidelines

range has been determined.” United States v. Shelton, 400 F.3d 1325, 1331 (11th

Cir. 2005) (quotation and citation omitted). A statutory error occurs when a

district court judge sentences a defendant “under a mandatory Guidelines scheme,

even in the absence of a Sixth Amendment violation.” Id. at 1330–31.

      We review for plain error when a defendant did not object to the Guidelines

under Blakely v. Washington, 124 S. Ct. 2531 (2004), or Booker in the district



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court. United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir.), cert. denied

125 S. Ct. 2935 (2005).

      An appellate court may not correct an error the defendant failed to
      raise in the district court unless there is: (1) error, (2) that is plain, and
      (3) that affects substantial rights. If all three conditions are met, an
      appellate court may then exercise its discretion to notice a forfeited
      error, but only if (4) the error seriously affects the fairness, integrity,
      or public reputation of judicial proceedings.

Id. at 1298 (quotations and citations omitted).

      1. Constitutional Error

      This case presents no constitutional error under Booker because Gooding did

not receive a sentence enhanced on the basis of judicial factfinding as to the

amount of heroin involved in his crime. Gooding pled guilty to the charge of

importing one kilogram or more of heroin. The PSI used the drug quantity of

2.491 kilograms, as determined by the DEA, and calculated his base offense level

under U.S.S.G. § 2D1.1(c)(4), which established an offense level for conduct

involving between one and three kilograms of heroin. The court subsequently

adopted the PSI’s sentencing calculation. Gooding did not receive a sentencing

enhancement based on judicial factfinding because the drug quantity adopted by

the court resulted in the lowest possible base offense level under the guidelines for




                                             3
the charge to which Gooding pled.1

       2. Statutory Error

       Although the district court did not commit a Sixth Amendment violation, it

committed statutory error under Booker when it sentenced Gooding under a

mandatory Guideline regime. United States v. Dacus, 408 F.3d 686, 689 (11th Cir.

2005). Under Booker, application of the Guidelines as mandatory meets the first

two prongs of plain-error review. Id. As to the third prong of the plain-error test,

the burden is on the defendant to demonstrate the plain error “affects [his]

substantial rights,” and the error “actually did make a difference.” Rodriguez, 398

F.3d at 1298. In applying the third prong, we ask “whether there is a reasonable

probability of a different result if the [G]uidelines had been applied in an advisory

instead of binding fashion by the sentencing judge in this case.” Id. at 1300. If

“[w]e just don’t know” whether the defendant would have received a lesser

sentence if the [G]uidelines had been advisory, the defendant has not met his

burden of showing prejudice. Id. at 1301.2



       1
         Moreover, Gooding admitted to the drug quantity at his plea colloquy and did not object
to the quantity of drugs listed in the PSI report. Shelton, 400 F.3d at 1330 (finding no constitutional
error where defendant admitted at his plea colloquy to the facts used to enhance his sentence and
did not object to the factual statements in the PSI).
       2
          We reject Gooding’s argument that a conflict exists between the plain-error standard
applied in our pre-Booker cases and the plain-error standard applied in cases following Booker. See
Rodriguez, 398 F.3d at 1299–300 (quoting Jones v. United States, 119 S. Ct. 2090 (1999)).

                                                  4
      Gooding presents no evidence suggesting the sentencing judge would have

issued a different sentence if the Guidelines were advisory. Gooding only argues

the mandatory nature of the guidelines prejudiced his substantial rights by

precluding the sentencing judge from considering other mitigating factors

regarding his personal history and characteristics. However, Gooding provides no

evidence showing a reasonable probability that consideration of these mitigating

factors would have resulted in a different sentence. There are no comments in the

record by the sentencing judge indicating frustration with the Guidelines or that the

court would issue a lesser sentence if the Guidelines were not mandatory. The fact

the sentencing court here issued a sentence at the bottom of the Guideline range,

without more, is insufficient to satisfy Gooding’s burden under the third prong.

United States v. Fields, 408 F.3d 1356, 1361 (11th Cir. 2005). Since Gooding

presents no evidence showing a reasonable probability the sentencing court would

have issued a different sentence under an advisory Guidelines system, Gooding

fails to satisfy his burden under the third prong of the plain-error analysis.

B. Minor-role Reduction

      We have held that “a district court’s determination of a defendant’s role in

the offense is a finding of fact to be reviewed only for clear error.” United States

v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The proponent of the



                                           5
reduction always bears the burden of proving the mitigating role in the offense by a

preponderance of the evidence. Id. at 939. In determining the defendant’s role in

the offense, the “decision falls within the sound discretion of the district court.” Id.

at 945. “So long as the basis of the trial court’s decision is supported by the record

and does not involve a misapplication of a rule of law, we believe that it will be

rare for an appellate court to conclude that the sentencing court’s determination is

clearly erroneous.” Id.

      In determining whether a role reduction is warranted, a district court “should

be informed by two principles discerned from the Guidelines: first, the defendant’s

role in the relevant conduct for which [he] has been held accountable at sentencing,

and, second, [his] role as compared to that of other participants in [his] relevant

conduct.” De Varon, 175 F.3d at 940. Under the first prong of the De Varon

analysis, “the district court must assess whether the defendant is a minor or

minimal participant in relation to the relevant conduct attributed to the defendant in

calculating [his] base offense level.” Id. at 941. Under the second prong of

De Varon, the district court measures the defendant’s culpability in comparison to

that of other participants in the relevant conduct. Id. at 944. In this analysis the

court “should look to other participants only to the extent that they are identifiable

from the evidence” and “may consider only those participants who were involved



                                            6
in the relevant conduct attributed to the defendant.” Id.

      In the drug courier context, we have stated there is no presumption drug

couriers are or are not minor or minimal participants. Id. at 943. The district court

must assess all of the facts probative of the defendant’s role in the relevant

conduct, including the defendant’s status and assigned tasks in the scheme. Id. at

942–43. The amount of drugs imported—which exceeds two kilograms here—is a

material consideration in assessing the defendant’s role in the relevant conduct. Id.

at 943. “Indeed, because the amount of drugs in a courier’s possession—whether

very large or very small—may be the best indication of the magnitude of the

courier’s participation in the criminal enterprise, [this Court does] not foreclose the

possibility that amount of drugs may be dispositive—in and of itself—in the

extreme case.” Id. In the drug courier context, some of the relevant factual

considerations include “amount of drugs, fair market value of drugs, amount of

money paid to the courier, equity interest in the drugs, role in planning the criminal

scheme, and role in the distribution.” Id. at 945.

      The district court’s determination that Gooding did not play a minor or

minimal role in the relevant conduct of heroin importation was not clearly

erroneous. The district court did not err in concluding under the first prong of De

Varon that the conduct for which Gooding was held accountable, importation of



                                           7
one kilogram or more of heroin, was identical to his actual conduct. While the

district court did not mention the second prong of the De Varon analysis, it is

possible on this record for the court to have concluded Gooding’s role as a courier

rendered him equally culpable to “Dan,” the only other identified participant in the

scheme. See De Varon, 175 F.3d at 946 (finding on similar facts that it is

reasonable to conclude the courier was equally culpable as the recruiter in an

importation scheme). The district court further noted that Gooding was convicted

of importing a substantial amount of heroin. Thus, the evidence in the record

provides a sufficient basis for the court’s decision to deny a role reduction.3

                                       II. CONCLUSION

       The district court did not plainly err under Booker. Additionally, the district

court did not clearly err in denying Gooding’s request for a role reduction.

       AFFIRMED.




       3
          Furthermore, the district court’s statement that Gooding’s objection to the refusal to grant
a role reduction “has to be” denied since his relevant conduct was equivalent to his actual conduct
is plausibly interpreted as an indication that the court concluded, based on an application of the facts
of Gooding’s case to the standard in De Varon, the reduction had to be denied. This statement by
the court is ambiguous at best and insufficient evidence the court misapplied or misinterpreted the
Guidelines.

                                                   8
TJOFLAT, Circuit Judge, specially concurring:

       As the court states, the district court committed Booker statutory error that is

plain, but appellant has not met the third prong of Rodriguez’s plain-error test; he

has not established “a reasonable probability” that the court would have imposed a

lesser sentence had it treated the sentencing guidelines as advisory rather than

mandatory. Ante at 5. That is, the district court failed to utter, at sentencing,

words, I call them “magic words,” indicating that but for the mandatory guidelines,

the court would have imposed a lesser sentence. United States v. Thompson, No.

04-12218 2005 WL 2099784, at * 17-19 (11th Cir. 2005) (Tjoflat, J., dissenting).

       The court is bound by Rodriguez’s magic-words test. I therefore concur in

its judgment. Were we writing on a clean slate, I would reject Rodriguez’s test

because, as I explained in Thompson, it “fosters disrespect for the rule of law. See

18 U.S.C. § 3553(a)(2)(A) (“The court, in determining the particular sentence to be

imposed, shall consider the need for the sentence imposed . . . to promote respect

for the law. . . .”).” Id., at * 18.




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