                                                        [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               MAR 30, 2006
                                No. 05-14089                 THOMAS K. KAHN
                            Non-Argument Calendar                CLERK
                          ________________________

                     D. C. Docket No. 03-14007-CR-KMM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JOSEPH FRANK CANTU,

                                                           Defendant-Appellant.

                          ________________________

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

                               (March 30, 2006)

Before DUBINA, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Appellant Joseph Frank Cantu appeals his conviction and sentence for

conspiracy to manufacture five grams or more of methamphetamine, in violation of
21 U.S.C. § 846. In connection with a 28 U.S.C. § 2255 motion to vacate, the

district court found that Cantu’s attorney at his first sentencing hearing in 2003 did

not file a timely notice of appeal as Cantu had requested. Thus, the district court

vacated his sentence and, during a second sentencing hearing, re-imposed the same

sentence to provide Cantu the opportunity to file a direct appeal. On appeal, Cantu

argues that the district court erred under United States v. Booker, 543 U.S. 220,

125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), in sentencing him at his second

sentencing hearing to the sentence previously imposed on him because, at his first

hearing, the district court did not consider the Guidelines as advisory. Cantu also

argues that he was denied the effective assistance of counsel at various stages in his

criminal proceeding.

Booker Challenge

      In United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000), we

explained the procedure for district courts to follow when granting a § 2255 motion

based on counsel’s failure to file a direct appeal:

      (1) the criminal judgment from which the out-of-time appeal is to be
      permitted should be vacated; (2) the same sentence should then be
      reimposed; (3) upon reimposition of that sentence, the defendant
      should be advised of all the rights associated with an appeal from any
      criminal sentence; and (4) the defendant should also be advised that
      the time for filing a notice of appeal from that re-imposed sentence is
      ten days, which is dictated by [Fed.R.App.P.] 4(b)(1)(A)(i).



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In this case, the district court determined that Cantu should be permitted another

opportunity to file a notice of appeal of his sentence because his attorney earlier

failed to file a timely notice of appeal after being requested to do so. The court

followed the procedure outlined in Phillips and held a second sentencing hearing

for Cantu in 2005, in which the court re-imposed the same sentence on him.

Because the district court expressed that it was limited in its power on resentencing

and re-imposed the same sentence previously given to Cantu in 2003 for the sole

purpose of allowing him to file a timely notice of appeal, we consider Cantu’s

sentence as being imposed before Booker and analyze his claims on appeal

accordingly.

       Because Cantu did not raise a Booker claim at his sentencing hearings, we

review his claim for plain error only. See United States v. Dowling, 403 F.3d 1242,

1246-47 (11th Cir.), cert. denied, 126 S. Ct. 462 (2005). Under a plain error

analysis, a defendant must show “(1) error, (2) that is plain, and (3) that affects

substantial rights.” Id. at 1247 (quotations omitted). If the defendant is able to

make a showing of all three conditions, we then may exercise our discretion to

notice the error if the error “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. (quotations omitted). We have held that, in

the context of Booker error, the plain error test is satisfied only when the defendant



                                             3
can show that “‘there is a reasonable probability of a different result if the

guidelines had been applied in an advisory instead of a binding fashion . . . .’” Id.

(quoting United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.), cert. denied

125 S. Ct. 2935 (2005)); see also United States v. Fields, 408 F.3d 1356, 1360-61

(11th Cir.) (explaining that a sentence at the low end of the Guidelines range does

not necessarily indicate that the district court would have sentenced the defendant

outside of the Guidelines if the court considered the Guidelines as advisory), cert.

denied, 126 S. Ct. 221 (2005).

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

Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial. Booker, 543 U.S. at 231-35, 125 S. Ct. at 749-

51. The Supreme Court explained that, to preserve Congress’s intent in enacting

the Sentencing Reform Act of 1984, two specific sections of the Act must be

excised – 18 U.S.C. § 3553(b)(1) (requiring a sentence within the Guideline range,

absent a departure) and 18 U.S.C. § 3742(e) (establishing standards of review on

appeal, including de novo review of departures from the applicable Guideline

range) – thereby effectively rendering the Guidelines advisory only. Id. at 259,

125 S. Ct. at 764. Based on the Supreme Court’s holding in Booker, we have

stated that statutory error occurs when a defendant is sentenced under a mandatory



                                           4
Guidelines system. See United States v. Shelton, 400 F.3d 1325, 1329-31 (11th

Cir. 2005).

      The district court committed only statutory error under Booker in sentencing

him. Cantu was sentenced to the highest point of his applicable Guideline range,

and there is no indication from the record of his first sentencing hearing that the

district court would have considered a sentence below his applicable Guideline

range. Therefore, since the record does not show a reasonable probability that the

district court would have imposed a lesser sentence on Cantu had the Guidelines

been advisory, Cantu’s substantial rights were not affected by the court’s treatment

of the Guidelines as mandatory, and the district court did not commit plain error.

See Dowling, 403 F.3d at 1247; Fields, 408 F.3d at 1360-61. Accordingly, we

affirm Cantu’s conviction and sentence.

Ineffective Assistance of Counsel

      “[A] claim of ineffective assistance of counsel may not be raised on direct

appeal where the claim has not been heard by the district court nor a factual record

developed.” United States v. Khoury, 901 F.2d 948, 969 (11th Cir. 1990), modified

on other grounds by, 910 F.2d 713 (11th Cir. 1990). The Supreme Court has

reasoned:

      [w]hen an ineffective-assistance claim is brought on direct appeal,
      appellate counsel and the court must proceed on a trial record not

                                           5
      developed precisely for the object of litigating or preserving the claim
      and thus often incomplete or inadequate for this purpose. . . . The
      evidence introduced at trial. . . will be devoted to issues of guilt or
      innocence, and the resulting record in many cases will not disclose the
      facts necessary to decide either prong of the Strickland [v.
      Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 2068, 80 L.
      Ed. 2d 674 (1984)] analysis.

Massaro v. United States, 538 U.S. 500, 504-505, 123 S. Ct. 1690, 1694, 155 L.

Ed. 2d 714 (2003). Therefore, we will consider an ineffective assistance claim on

direct appeal only if the record is sufficiently developed. See United States v.

Perez-Tosta, 36 F.3d 1552, 1563 (11th Cir. 1994) (“It is settled law in this circuit

that a claim of ineffective assistance of counsel cannot be considered on direct

appeal if the claims were not first raised before the district court and if there has

been no opportunity to develop a record of evidence relevant to the merits of the

claim.”). The ineffective assistance claims may be pursued in a 28 U.S.C. § 2255

proceeding. Id.

      In this case, when the district court granted Cantu’s § 2255 motion with

respect to his claim of ineffective assistance of counsel for failing to file a notice of

appeal, the court ordered that the other claims presented in Cantu’s § 2255 motion

be dismissed without prejudice. We decline to address Cantu’s remaining

ineffective assistance of counsel claims because the record is not sufficiently

developed with respect to these claims. See Khoury, 901 F.2d at 969.



                                            6
Accordingly, we dismiss the appeal as to this issue.

      Conviction and Sentence AFFIRMED; DISMISS in part.




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