                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                     FOR THE ELEVENTH CIRCUIT
                                              U.S. COURT OF APPEALS
                       ______________________   ELEVENTH CIRCUIT
                                                            May 10, 2005
                             No. 04-12825                THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                        ______________________

                   D. C. Docket No. 03-00258-CR-CG

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

     versus

PAUL ELLIOTT HAMPTON, JR.,

                                                     Defendant-Appellant.

                        ______________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                        _______________________

                              (May 10, 2005)


Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:

        Defendant-Appellant Paul Elliott Hampton, Jr., appeals his 46-month

sentence for possession of an unregistered firearm, in violation of 26 U.S.C. §

5861(d). No reversible error has been shown; we affirm.

        Defendant raises for the first time on appeal a single issue: whether the

district court committed reversible constitutional error under Blakely v.

Washington, 124 S.Ct. 2531 (2004), when it imposed a two-level enhancement

under U.S.S.G. § 2A2.2 based on judicially determined facts that were neither

charged in the indictment nor admitted by Defendant during the Fed.R.Crim.P. 11

plea proceedings.1      Blakely concluded that a state mandatory guideline system

violated a defendant’s Sixth Amendment constitutional rights when a sentence

enhancement was imposed based on facts found by a judge that were not admitted

by the defendant. Id. at 2534-38. And in Booker v. United States, 125 S.Ct. 738

(2005), the Supreme Court concluded that Blakely applied to the Federal

Sentencing Guidelines. Booker, 125 S.Ct. at 749.




    1
     Hampton filed written objections to his PSI and disputed again at sentencing the facts that
supported the cross-reference of the gun possession offense to the guideline for aggravated assault,
U.S.S.G. § 2A2.2; he concedes that did not raise in the district court the constitutional issue now
raised on appeal.

                                                 2
      Because Defendant raises this issue for the first time on appeal, we review

his claim only for plain error. See United States v. Cotton, 122 S.Ct. 1781, 1785

(2002); United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005). On plain

error review, a defendant must show “error” that is “plain” and that “affect[s]

substantial rights.” United States v. Olano, 113 S.Ct. 1770, 1776 (1993). It is

only after these conditions have been satisfied that an appellate court has

discretion to notice a forfeited error. Id. An appellate court may remedy error that

is plain and affects substantial rights only if “the error ‘seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.’” Johnson v.

United States, 117 S.Ct. 1544, 1549 (1997) (quoting Olano, 113 S.Ct. at 1776).

      In United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005) petition for

cert. filed (U.S. Feb. 23, 2005) (No. 04-1148), we recognized that an

enhancement imposed under a mandatory guidelines system based on facts found

by the judge that went beyond those admitted by the defendant or found by the

jury constituted Booker error. Id. at 1298-99. And, because of Booker, we

concluded that that error is now plain. So Defendant has satisfied the first two

requirements for plain error relief. Id. at 1299.

      Defendant fails, however, to satisfy the third requirement: that the error

“affected substantial rights.” As we explained in Rodriguez, the Booker error is

                                            3
not the use of extra-verdict enhancements; it is “the use of extra-verdict

enhancements to reach a guidelines result that is binding on the sentencing judge.”

Id. at 1301. To show the prejudice required for plain error relief, a claimant must

show a “reasonable probability of a different result if the guidelines had been

applied in an advisory instead of binding fashion.” Id.

      Defendant has not met his burden of showing that the Booker error in his

case affected the outcome of his sentencing. See id. at 1301, 1306. Defendant

proffers nothing to show that a reasonable probability exists that the sentencing

judge would have imposed a more lenient sentence had the guidelines been

applied in an advisory and non-binding fashion. See id. at 1301.

      AFFIRMED.




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