                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    June 6, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40967



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

     versus

MANUEL SANTIAGO AMADOR-VELASCO,

                                    Defendant-Appellant.



          Appeal from the United States District Court
               for the Southern District of Texas
                         5:04-CR-102-ALL



Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Manuel Santiago Amador-Velasco (Amador)

was convicted, following the jury’s April 15, 2004 verdict of

guilty, of one count of conspiracy to possess with intent to

distribute more than five kilograms of cocaine in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and one count of

aiding and abetting the possession with intent to distribute more

than five kilograms of cocaine in violation of 18 U.S.C.§ 2, 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(A).      He was sentenced July 15,

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2004 to concurrent terms of 151 months’ confinement and five

years’ supervised release on each count.   Amador appeals his

convictions on the grounds that the evidence is insufficient and

that his expert witness was improperly excluded.   He also appeals

his sentence, arguing that the district court committed Booker

error by sentencing him under a mandatory Guidelines regime.    We

affirm.

                                I.

     Amador, a forty-five-year-old used-car dealer from

Monterrey, Mexico, was stopped at 5:30 p.m. on December 26, 2003,

at the United States Border Patrol checkpoint facility located

fifteen miles north of Laredo, Texas on IH-35.   Amador was the

driver and sole occupant of his 2002 Chevrolet station wagon.

Border Patrol Agent Jaime Vega questioned Amador regarding his

immigration status and citizenship, to which Amador replied he

was not a United States citizen and was on his way from his home

in Monterrey, Mexico to shop in San Antonio.   Agent Vega

testified he became suspicious because Amador refused to make eye

contact with him and tightly gripped his steering wheel.

     As Agent Vega continued to question Amador, Border Patrol

Agent Luis Uribe escorted his drug detection canine, Tessa,

around Amador's vehicle.   Tessa alerted to the car, and Amador

was consequently directed to the secondary inspection site.     At

the secondary inspection site, Amador remained outside his car



                                 2
with Agent Vega while Agent Uribe walked Tessa around the car a

second time and Tessa alerted again to the underbody of the

vehicle.       Agent Uribe then raised the car on a lift for further

inspection and ultimately found a false compartment under the

vehicle where the spare tire was located.       During this time,

Agent Vega notes that Amador was acting “fidgety” and otherwise

impatiently.

       Easily opening the trap door to the false compartment by

knocking off the Bondo holding it in place, Agent Uribe found

bundles of cocaine weighing 18.821 kilograms in total (estimated

value: $ 1.4 million).       Agent Uribe opined that the trap-door

compartment was constructed in such a way to allow for repeated

use.       When shown the contraband, Amador appeared “calm,” did not

act “shocked,” and denied knowledge of the bundles of cocaine.

At this point, DEA Agent Clint Hardcastle arrived at the

checkpoint, took control of the drugs, and read Amador his

rights.       Agents found no luggage or clothing indicating a planned

stay in the United States. A Mexico-issued car registration and

bill of sale dated August 9, 2003, confirmed that Amador owned

the vehicle.

       Amador does not contest that the vehicle was his but claims

his possession was not exclusive due to the complex circumstances


       1
     Both the government and the defendant stipulated at trial
that the “net weight of the cocaine involved [was] 18.82
kilograms, or approximately 41.5 pounds.”

                                     3
surrounding his procurement of it.    He claims that while driving

one day in Monclova, Coahuila, Mexico (two-and-a-half hours from

his home in Monterrey), he happened to encounter the station

wagon in question on the street with a “for sale” sign.2    He

pulled over and spoke to two strangers, Victor Manuel

Echavarria-Gomez (Echavarria) and Roberto Becera (Becera), about

purchasing the vehicle.   The vehicle was selling for 97,000 pesos

but Amador resisted, claiming he only had 50,000 pesos on hand.

Becera ultimately agreed to accept half of the negotiated price

of 88,000 pesos if Amador agreed to work for him to pay off the

remaining balance of 44,000 pesos.

     According to Amador, Becera offered to pay him 30,000 pesos

(approximately $3,000.00) per month if he would illegally

transport American dollars from the United States to Mexico to

avoid the reporting requirements.    Becera acknowledged the false

compartment in the car used for this purpose, referring to it as

a “safe.”   Amador accepted the terms of the deal. At this point,

on August 9, 2003, Amador took possession of the vehicle,

obtaining a temporary permit until the registration was placed in

his name.

     Amador testified that Becera took possession of the car at

the beginning of November 2003, ostensibly to get documentation


     2
      Amador testified that he traveled to Monclova to buy cars
to sell in his ten-year-old used-car business about ten times a
year “because they were cheaper there than in Monterrey.”

                                 4
to change the license plates on the vehicle, and returned it to

Amador December 7 or 8, 2003.   Amador subsequently received (and

followed) Becera’s instructions on December 25, 2003, via

messenger, directing Amador to travel to Laredo, Texas on

December 26, 2003.   Amador did so, leaving the vehicle at the

Mall Del Norte in Laredo at 4:00 p.m. on December 26, ostensibly

to be loaded with currency for the return trip to Mexico.   When

Amador returned approximately an hour later, he encountered

Becera who instructed him on a change of plans, directing him to

go to San Antonio to have the false compartment loaded with

currency.   Amador then began to drive toward San Antonio until he

was intercepted at the checkpoint just outside Laredo where he

was subsequently arrested.

                                II.

                                A.

     Amador first argues that the evidence is insufficient to

establish his knowledge of the contents of his vehicle's hidden

compartment.   He claims he never made any inconsistent

statements, has always denied knowledge of the drugs, has no

criminal record, and had no other items in his possession that

would arouse suspicion.   Further, he argues that his possession

of the vehicle was not continuous throughout his ownership of it

and that the car was previously searched (without incident) with

use of a drug-sniffing dog when he crossed the border from Mexico


                                 5
into Laredo, Texas.    He then claims that unknown to him someone

placed the drugs in the hidden compartment after he crossed into

the U.S.

     We review the evidence de novo in the light most favorable

to the verdict, but will uphold the verdict only if there is

substantial evidence from which a rational trier of fact would

find beyond a reasonable doubt all the essential elements of the

offense charged.     United States v. Alarcon, 261 F.3d 416, 422–23

(5th Cir. 2001); United States v. Moreno, 185 F.3d 465, 471 (5th

Cir. 1999).    The jury is free to choose among the various

reasonable constructions of the evidence and the evidence does

not have to exclude all hypotheses of innocence.     Moreno, 185

F.3d at 471.    Yet, “[i]f the evidence tends to give ‘equal or

nearly equal circumstantial support’ to guilt or innocence,

however, reversal is required: When the evidence is essentially

in balance, ‘a reasonable jury must necessarily entertain a

reasonable doubt.’” United States v. Ortega Reyna, 148 F.3d 540,

543 (5th Cir. 1998) (quoting United States v. Lopez, 74 F.3d 575,

577 (5th Cir. 1996)).

     To convict Amador of possessing cocaine with intent to

distribute, the government had to prove beyond a reasonable doubt

that Amador (1) knowingly (2) possessed cocaine (2) with intent

to distribute.     Moreno, 185 F.3d at 471; 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A) and 846.    To establish aiding and abetting the


                                   6
criminal venture of possession with intent to distribute cocaine,

the government had to prove “that [Amador] (1) associated with

the criminal enterprise; (2) participated in the venture; [and]

(3) sought by his action to make the venture succeed.” United

States v. Valdez, 453 F.3d 252, 260 (5th Cir. 2006); 18 U.S.C §

2; 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).    Amador only

challenges the knowledge requirement.

       A jury may infer knowledge if the defendant was in control

of the drug-containing vehicle but proof of the defendant’s

knowledge generally depends on inference and additional

circumstantial evidence where the drugs are hidden in a secret

compartment.    Moreno, 185 F.3d at 471; Ortega Reyna, 148 F.3d at

544.    We require this level of proof in hidden compartment cases

because there “is at least a fair assumption” that the defendant

may have been used as an unwitting carrier or mule in the drug

smuggling enterprise. United States v. Diaz-Carreon, 915 F.2d

951, 954 (5th Cir. 1990).    We have previously recognized as

circumstantial evidence of guilty knowledge: (1) nervousness; (2)

absence of nervousness or a calm, collected demeanor; (3) refusal

to make or retain eye contact; (4) reluctance to answer

questions; (5) lack of surprise when the illegal drugs are found;

(6) statements that are inconsistent; (7) explanations that are

implausible; (8) possession of a large amount of cash; (9)

obvious or significantly noticeable changes to the vehicle,


                                  7
particularly when the defendant has had possession of the vehicle

for a significant period of time.     Ortega Reyna, 148 F.3d at 544.

     There is sufficient evidence in the record by which a

rational jury could find Amador guilty under our recent

precedent.   In Moreno, this court held that evidence exposing the

defendant’s “inconsistent statements and implausible

explanations” were sufficient to “lead a reasonable trier of fact

to doubt [the defendant’s] credibility.” 185 F.3d at 472.      In

Resio-Trejo, another hidden-compartment drug case, the defendant

exhibited no signs of nervousness during the search of his

vehicle, like Amador, but this court stressed the defendant’s

well-documented, continuous ownership and inspection regimen to

find the additional circumstantial evidence needed to sustain his

convictions.   45 F.3d at 912.   Long, exclusive control and

ownership may not be necessary under Resio-Trejo.    To support our

finding in Resio-Trejo, we cited a case where the evidence was

sufficient when the defendant possessed the vehicle in question

for a mere week prior to the search. 45 F.3d at 912 (citing

United States v. Olivier–Becerrill, 861 F.2d 424, 427 (5th Cir.

1988)).   It is uncontested that Amador possessed the vehicle in

question for well over four months prior to his arrest, though

Amador claims there was a brief period where Becera had

possession approximately three weeks prior to Amador’s arrest.

     The jury would not be unreasonable in choosing to disregard


                                  8
Amador’s story about his acquisition of the vehicle as not

entirely credible.    Amador’s odd behavior when he was stopped at

the checkpoint may also provide at least marginal support for the

jury’s findings, including his lack of surprise when the cocaine

was discovered in his car.    Further, the false compartment was

sealed with Bondo, an auto-repair putty, which when Agent Uribe

knocked it off with a hammer had dried to a level Agent Uribe

estimated at “several days old” but not months old, suggesting

the cocaine had been placed in the car prior to Amador’s border

crossing but well after Becera no longer had possession of the

car.    And, the jury could have considered that the monetary value

of the drugs found in the vehicle, $ 1.4 million, made it

unlikely for Amador to have been an innocent, misled mule. See

United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003);

United States v. Gamez-Gonzales, 319 F.3d 695, 699 (5th Cir.

2003).

       Crucially (and unlike any of the hidden compartment cases he

relies on), Amador freely admitted he knew about the hidden

compartment at the time he bought the car from two strangers in

an area of Mexico remote from his home at a reduced price in

exchange for his use of the compartment to furnish illegal

smuggling services.    His explanation that he thought the

compartment was to be used to facilitate a different smuggling

purpose (money instead of drugs) could have been rejected by a


                                  9
rational jury.    Also, a jury can consider “as circumstantial

proof of guilty knowledge” a “charade of ignorance,” as could be

present in driving a car with a hidden compartment for illegal

purposes without checking the compartment.     Moreno, 185 F.3d at

476.    Amador’s claims he could not have checked the compartment

could be disregarded by the jury (particularly since Agent Uribe

testified he accessed the contents of the hidden compartment in a

matter of minutes).

       We hold that the jury’s verdict was adequately supported by

the evidence presented at trial.

                                 B.

       Amador next claims that the district court abused its

discretion by not admitting testimony from his proffered expert

witness, Julio Garcia, a defense attorney from Laredo, Texas, who

had served some eight years as state district attorney in the

area during the 1980s.    Garcia was to testify that drug smugglers

often lie to their carriers to prevent theft and conceal the

value of the drugs.    The testimony was excluded under Rules of

Evidence 702 and 704(b) due to a lack of a sufficiently reliable

basis for Garcia’s testimony and because the proposed testimony

regarded Amador’s mental state, an ultimate issue for the jury.

       We review the district court’s decision to admit or exclude

evidence for abuse of discretion.     United States v. Dixon, 413

F.3d 520, 523 (5th Cir. 2005); United States v. Gutierrez-Farias,


                                 10
294 F.3d 657, 662 (5th Cir. 2002).    “Expert testimony is

admissible if (1) it will assist the trier of fact to understand

the evidence or to determine a fact in issue; (2) it is based on

sufficient facts or data; (3) it is the product of reliable

principles and methods; and (4) the witness has applied the

principles and methods reliably to the facts of the case.” Dixon,

413 F.3d at 523 (citing FED. R. EVID. 702).   Rule 704(b) prohibits

expert opinions as to whether a defendant did or did not have the

mental state constituting an element of the offense.

     The district court held a Daubert hearing outside the

presence of the jury to determine the admissibility of Garcia’s

testimony.   Garcia testified that, after discussions with

investigating officers, witnesses and defendants–clients, he had

come to the opinion that “owners of drugs lie to the drivers of

their ‘merchandise’ to prevent theft, and conceal the type of

contraband being transported to prevent knowledge of the value of

the contraband.”   Garcia admitted, however, that his information

was obtained second- or third-hand, that he had no personal

knowledge as to the facts on which he based his opinion, and that

he never corroborated or verified any of his information.     The

district court excluded Garcia’s testimony because it: (1)

questioned the reliability of the information upon which attorney

Garcia premised his opinion, per Rule 702; and (2) concluded that

attorney Garcia’s testimony was proffered for the purpose of


                                 11
addressing the ultimate issue in the case in violation of Rule

704(b).

     We have held that a court’s decision to disallow testimony

similar to that offered by Garcia was not in error and that

allowed testimony similar to that offered by Garcia was in error.

See United States v. Gutierrez-Farias, 294 F.3d 657, 663 & n5

(5th Cir. 2002); United States v. Mendoza-Medina, 346 F.3d 121,

129 (5th Cir. 2003).

     In the present case, the district court acted well within

its discretion in excluding Garcia’s proffered testimony under

either Rule 702 or Rule 704(b). There appears to be a very

tenuous factual basis for his testimony.   Also, like numerous

other cases we have decided, it would not be an abuse of

discretion to find that Garcia’s proffered testimony skirts too

close to the ultimate issue in this case—Amador’s mental state.

                              III.

     Amador argues for the first time on appeal that he was

sentenced in violation of United States v. Booker, 125 S.Ct. 738

(2005), contending the sentencing judge, visiting Chief District

Judge Berrigan of the Eastern District of Louisiana (who did not

preside at trial), made her sentencing decision under the

misconception that the Guidelines were mandatory, rather than




                               12
merely advisory.3   Amador’s presentence report established a base

level of 34 with a guideline range of 151 to 188 months (the

statutory range was 120 months to life pursuant to 21 U.S.C. §

841(b)(1)(A)).   There were no objections to the presentence

report (and none are pursued on appeal), and Judge Berrigan

sentenced Amador to the lowest sentence within the range:

concurrent terms of 151 months on each count.

     Since Amador did not raise any objections below to the

sentencing, our review is for plain error. FED. R. CRIM. P. 52(b);

United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).     For

there to be plain error, there must be “(1) ‘error’, (2) that is

‘plain’, and (3) that ‘affect[s] substantial rights’.” United

States v. Cotton, 122 S.Ct. 1781, 1785 (2002).   In order for an

error to affect a defendant’s substantial rights, the error “must

have affected the outcome of the district court proceedings,”



     3
      The error Amador alleges is more correctly characterized as
Fanfan error. As clarified in the recent opinion United States
v. Rodriguez–Mesa, 443 F.3d 397, 404 (5th Cir. 2006), Booker
addresses two types of error:
     “‘Booker error is found where the district court
     applied the mandatory Guidelines and enhanced a
     defendant's sentence on the basis of facts neither
     admitted by him nor found by a jury beyond a reasonable
     doubt, in violation of the Sixth Amendment[,]' whereas
     ‘Fanfan error is found where the district court applied
     the mandatory Guidelines to enhance a defendant's
     sentence absent any Sixth Amendment Booker error.’”
     (remanding for resentencing under harmless error review
     and quoting United States v. Walters, 418 F.3d 461, 463
     (5th Cir. 2005) (remanding for resentencing under
     harmless error standard of review)).

                                 13
United States v. Olano, 113 S.Ct. 1770, 1778 (1993), and the

defendant must demonstrate a probability thereof “sufficient to

undermine confidence in the outcome.” United States v. Dominguez

Benitez, 124 S.Ct. 2333, 2340 (2004). “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

affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” Cotton, 122 S.Ct. at 1785.

     Sentencing under mandatory application of the Guidelines is

plain error, thereby satisfying the first two prongs, so Amador

must show that this error affected his substantial rights by

“evidence in the record suggesting that the district court would

have imposed a lesser sentence under an advisory guidelines

system.” United States v. Taylor, 409 F.3d 675, 677 (5th Cir.

2005); United States v. Valenzuela-Quevedo, 407 F.3d 728, 733

(5th Cir. 2005).   A court’s “imposition of a sentence at the

bottom of the guidelines range, alone, does not indicate that

there is a reasonable probability that the court would have

imposed a lesser sentence under advisory sentencing guidelines.”

United States v. Duarte-Juarez, 441 F.3d 336, 339 (5th Cir.

2006).   “However, a minimum sentence is ‘highly probative, when

taken together with relevant statements by the sentencing judge

indicating disagreement with the sentence imposed, that the

Booker error did affect the defendant’s substantial rights.’”


                                14
Id.; see also Mares, 402 F.3d at 521.

     The sentencing hearing was quite brief.    After ascertaining

that there were no objections to the PSR, the district judge

adopted the PSR and its 151-188 months guideline range.    The

government announced it had no comment, and defense counsel

merely stated:

     “MR. PENA, SR: The only thing that we are asking, Judge
     is that you consider the low end of this case which is
     bad enough in itself. It’s 151 months.

     THE COURT: I agree with you.”

The court then asked defendant if he wished to say anything and

Amador made a short statement which, as defense counsel then

briefly explained to the court, was essentially a vague and

oblique reiteration of his trial defense that he didn’t know

cocaine was in the compartment.    The following then transpired:

     “Okay. I will state for the record that I do agree with
     the implication of defense counsel that the guidelines
     are bad enough as it is, and I hope that some day the
     guidelines with respect to drug offenses in particular
     will be more reasonable and more compassionate to all
     the circumstances involved.

     All right. Pursuant to the Sentencing Reform Act of
     1984, it is the judgment of the Court that the
     defendant . . . is hereby committed . . . for a total
     term of 151 months.”

     The government argues that the court’s remarks are not

sufficient to show that the judge would have reached a different

conclusion under an advisory scheme, also noting that Amador has

not offered any reasons or evidence that would justify a downward

departure or variance from the Guidelines.     Furthermore, Amador

                                  15
did not object to the presentence report and never asked for a

sentence below the Guideline range or offered any particular

reason for leniency or a low sentence in his case.   He asked for

151 months, and that is what he got.

     Amador has not succeeded in meeting his heavy burden under

plain error review—he must show more under our precedent to

convince this court that the sentencing judge would likely have

sentenced him to a lower sentence, below the Guidelines range,

but for the judge’s (assumed) misconception that the Guidelines

were mandatory.4

     For example, in United States v. Pennell, 409 F.3d 240, 245

(5th Cir. 2005), the defendant met his burden where sentencing

court stated:

     “Once again, I say that from many   standpoints of
     fairness and justice, it might be   better to sentence
     people just based on actual loss,   but I don't think
     that's the way the guidelines are   written or the
     appellate courts interpreted them   in most cases. So I
     feel constrained to overrule your   objection.”

In United States v. Garcia, 416 F.3d 440, 441 (5th Cir. 2005),

this burden was met where the court in the sentencing hearing

“discussed at length the difficulties of long prison sentences

and their effect on families,” and, noting that the defendant was

a married father of small children, then “opined: ‘You [Garcia]

are a young man and I would prefer to sentence you to a lesser

     4
     The district court never referred to the guidelines as
being mandatory or inflexible or the like, although we assume
that the court regarded them as mandatory in the Booker sense.

                               16
sentence than required under the guidelines but I’m going to

follow the law and assess punishment appropriately based on the

circumstances that are presented before me.’” Id. (emphasis

added).   The Garcia court then sentenced the defendant to the

lowest sentence in the applicable Guidelines range. Id.

     Likewise, in United States v. Montes–Nunez, 2005 WL 3099635

(5th Cir. Nov. 21, 2005) (unpublished), this court found

reversible Fanfan error under plain error review where the

minimum guideline sentence was imposed and the sentencing judge

repeatedly stated that the range was excessive and that the

sentence imposed was “an excessive sentence any way you cut it.”5


     5
      The judge’s statements in United States v. Montes-Nunez are
as follows:
     “[Defense Attorney]: ... [The defendant] didn't come
     over here with a machine gun. He wasn't robbing. He
     wasn't killing. [The sentence is excessive.]

     The Court: I understand . . . I understand what you are
     saying.

     [Defense Attorney]: He just crossed the political
     boundary.

     The Court: I understand. But the problem is that
     Congress has said that crossing the political boundary
     when you are a convicted criminal alien is going to be
     a serious offense.

     [Defense Attorney]: I understand that, Your Honor. But
     this Court also has certainly the power and also is in
     a position to do justice here. And to make the sentence
     fit the gravity of the crime.

     The Court: I am not going to do it by perverting the
     guidelines because the sentence is very high for coming
     over illegally. I agree with you. This is an excessive

                                17
This court has also cited the Eleventh Circuit’s United States v.

Shelton, 400 F.3d 1325 (11th Cir. 2005).6   In Shelton, the


     sentence any way you cut it. However, it is not within
     my power to ignore the guidelines or the law just
     because I don't agree with the guideline ranges.

     [Defense Attorney]: Well, I do agree that the sentence
     range here would be excessive. And I am basically
     presenting a technical argument to the Court that
     ameliorates the severe effect of the sentencing range
     and-

     The Court: I understand . . .

     [Defense Attorney]: I think there is a good argument
     that can be made that the guidelines could be applied
     in that way.

     The Court: But I would—what I would be doing is, I
     would be misapplying the guidelines. And that's what
     gives rise to the Protect [sic] and the Patriot Act.
     This is a misapplication of the guidelines to these
     laws. That's what is making Congress very angry about
     the courts. And that's why they are tightening it up. I
     would suggest, make this argument to Congress, see if
     they will change the laws. And I would support you in
     your request in terms of Congress. However, I am not
     going to misapply the guidelines and get around the
     intent of Congress because I don't agree with the
     sentencing range. And I think that they are personally
     excessive. I agree with you. They are excessive.” Id.
     (emphasis added).

     6
      In Bringier, however, this court distinguished Shelton:
     “Unlike Shelton, the sentencing judge here did not
     lament over the sentence he imposed, nor did he state
     that the sentence is ‘more than appropriate' or ‘too
     severe.' Instead, he merely acknowledged the sentence
     was harsh. In addition, the fact that the sentencing
     judge imposed the minimum sentence under the Guideline
     range (360 months) alone is no indication that the
     judge would have reached a different conclusion under
     an advisory scheme.” United States v. Bringier, 405
     F.3d 310, 318 n.4 (5th Cir. 2005)

                                18
Eleventh Circuit vacated and remanded for resentencing under

plain error review where the defendant pointed to statements in

the record which, when taken together, indicated that the

sentencing court would have sentenced him to a lower sentence

under an advisory regime as opposed to the presumed mandatory

regime.   The sentencing court commented that Shelton’s sentence

was “very, very severe” due to his criminal history points and

the mandatory consecutive sentence for the section 924(c)

firearms count. Id. at 1328.   It also noted that “unfortunately”

the Guidelines criminal-history calculation takes into account

each of the defendant's past charges and not the fact that the

sentences imposed on those charges were short as a result of such

factors as the youth of the defendant or amount of drugs

involved. Id.   It also expressed its disapproval of the severity

of the sentence by stating that Congress has taken a “very, very

hard stance when it comes to guns and drugs.”   Id.   Finally, the

sentencing court indicated that the most lenient sentence it

could impose, a sentence at the low end of the Guidelines range,

was “more than [was] appropriate in this situation.” Id.

(emphasis added).

     Here, the district court’s comments simply do not rise to

the level present in the above cases but rather are more similar

to those in which we have not found plain error.   The defendant

in United States v. Bringier, 405 F.3d 310 (5th Cir. 2005),


                                19
failed to satisfy his burden to prove his substantial rights were

affected.   In Bringier, the sentencing court merely noted,

similar to the present case, that the sentence imposed was harsh:

     “I do not know that the testimony at the trial ever
     made it, nailed it down, but I suspect-and I think you
     probably suspect as well-that your activities led to
     the death of your wife and child. I just think it is,
     you know, a tragedy, you know, a waste of a young man
     that could have been many things.

     I do not know what to tell you other than this is
     the—even though it is a harsh sentence of 30 years,
     that is the lowest sentence that I could give you. Your
     convictions on these counts could have carried a life
     sentence, but I do not see any reason to sentence you
     beyond the minimum.” Id. at 317 n.4.

     In United States v. Mendoza–Sanchez, 456 F.3d 479 (5th Cir.

2006), the defendant failed to show that the sentencing court’s

plain Fanfan error affected his substantial rights.     In

Mendoza–Sanchez, the district court sentenced the defendant to

the lowest end of the Guidelines range but we noted that “the

fact that the sentencing judge imposed the minimum sentence under

the sentencing Guidelines range, alone, is no indication that the

judge would have reached a different conclusion under an advisory

scheme.” Id. at 484.   See also, e.g., United States v. Rodriguez-

Gutierrez, 428 F.3d 201, 204-06 (5th Cir. 2005); United States v.

Duarte-Juarez, 441 F.3d 336, 339-40 (5th Cir. 2006).7


     7
      Additionally noteworthy is our opinion in United States v.
Pineiro, 410 F.3d 282 (5th Cir. 2005), where the defendant
preserved his objection thereby causing his Fanfan claim to be
reviewed for harmless error—placing the burden on the government
to show that the sentencing judge would not have imposed a

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     The district court’s statements here skirt very close to the

line but nevertheless fall on the side of affirmance as, in the

context of the overall sentencing proceeding, they lack the

specificity needed for Amador to satisfy his heavy burden to

mandate plain error reversal.   For example, unlike in Garcia,

where the judge explicitly said “I would prefer to sentence you

to a lesser sentence than required under the guidelines,” 416

F.3d at 441, the district court here only deplores the state of


different sentence under an advisory regime. We vacated the
sentence and remanded for resentencing under the harmless error
standard, holding that a judge’s silence as to whether he would
have imposed a different sentence under an advisory regime does
not satisfy the government’s burden, but stated, specifically,
that the sentencing judge’s remarks would likely not warrant
remand under plain error review. Noting that the sentencing
judge never said the range was too high in light of the offense
or that he would rather impose a lower sentence, we found the
following statements by the sentencing judge sufficient for
remand under harmless error review but insufficient for remand
under plain error review:
     “Mr. Pineiro, you do understand, and I’m sure your
     attorney has told you, that the Court in meting out
     sentencing, this and virtually every other case that
     comes before the Court, I’m bound by sentencing
     guidelines [that are] prepared by the US Sentencing
     Commission. So I have to operate within those
     [parameters], unless there are certain reasons why the
     guidelines can be bent[. F]or example, with substantial
     cooperation, the government can file a motion for a
     downward departure based on substantial assistance by a
     defendant, and the Court can depart. In that regard,
     the Court can also depart upward in certain cases where
     there are . . . aggravating circumstances not fully
     taken under consideration by the guidelines. I don’t
     know of [any] reason in this case why either—there
     should be either an upward or a downward departure from
     the guidelines. So to that extent, the Court will
     adhere to the guidelines.” Id. at 286 n.6.


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guideline drug sentences in a wholly general way—there does not

appear to be anything in her statements affirmatively indicating

that she likely would have reached a different sentence in this

particular case under an advisory scheme.   Rather, at the most

the minimum sentence is merely “bad enough” not too bad (or, her

agreement may simply be with 151 months as an appropriate

sentence). Amador must show something more specific or concrete

for plain error—not merely general hypotheses of a sentencing

judge’s possible inclination but an adequate indication she would

actually have preferred to sentence this particular defendant for

these particular offenses below the applicable Guidelines range.

See Mares, 402 F.3d at 521–22.   Amador’s case does not amount to

an error worthy of remand under the high burden presented by

plain-error review.

                                 IV.

     For the foregoing reasons, the defendant’s convictions and

sentence are

                            AFFIRMED.




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