                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________
                                                                     FILED
                                No. 04-12305                U.S. COURT OF APPEALS
                            Non-Argument Calendar             ELEVENTH CIRCUIT
                                                                 June 1, 2005
                          ________________________
                                                                THOMAS K. KAHN
                                                                     CLERK
                        D.C. Docket No. 03-10024-CR-SH

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                      versus

ELIAS SANTIESTEVAN,

                                                          Defendant-Appellant.

                         __________________________

               Appeal from the United States District Court for the
                          Southern District of Florida
                         _________________________
                                (June 1, 2005)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

      Elias Santiestevan appeals his 135-month sentence for conspiracy to possess

with intent to distribute five or more kilograms of cocaine on board a vessel
subject to United States jurisdiction, in violation of 46 U.S.C. app. §§ 1903(g) and

1903(j). On appeal, Santiestevan argues that his due process rights and right to a

jury trial were violated when the district court enhanced his sentence based on a

quantity of drugs not charged in the indictment or admitted by him. Because,

under United States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005), the district

court erred in sentencing Santiestevan under a mandatory sentencing guidelines

regime, and Santiestevan has established a reasonable probability that the district

court would have imposed a lesser sentence but for the mandatory guidelines, we

VACATE Santiestevan’s sentence and REMAND for re-sentencing.

                               I. BACKGROUND

      Santiestevan was indicted for, among other things, conspiracy to possess

with intent to distribute five or more kilograms of cocaine on board a vessel

subject to United States jurisdiction, in violation of 46 U.S.C. app. §§ 1903(g) and

1903(j). At the hearing where he pled guilty, the plea agreement and the Factual

Basis for Plea were introduced. R1-60, 67, 68. The plea agreement did not

include a waiver of appellate rights. See R1-67. The Factual Basis, which

Santiestevan signed, stated that 428 kilograms of cocaine were recovered from the

water near the vessel from which Santiestevan and his co-defendants were

rescued. R1-68 at 1-2. The probation officer recommended that Santiestevan

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receive a base offense level of 35 and a criminal history category of I, resulting in

a sentencing guidelines’ range of 168 to 210 months. Santiestevan objected to the

probation officer’s recommendation and argued that he was entitled to reductions

under the safety valve provision and for his minor role in the offense. R1-107.

The government responded in opposition to both reductions. R1-108.

      At sentencing, the government and Santiestevan indicated that the parties

had reached an agreement in which the government would not oppose the safety

valve reduction, and Santiestevan would withdraw his request for a minor role

reduction. R2 at 6-7, 8. Based on the safety valve reduction, the probation officer

then advised that Santiestevan’s offense level would be 33, with a sentencing

range of 135 to 168 months. Id. at 9. The district judge endorsed the agreement

regarding the safety value reduction and indicated that he would sentence

Santiestevan “at the low end of the guideline range.” Id. He commented that

      particularly in circumstances such as these, I would impose a lower
      sentence had I the discretion to do so, the discretion to depart. I don’t
      find the basis for that, but I am not in agreement with the sentencing
      guidelines as they are administered, but there is nothing I can do
      about that. I must uphold the law.

Id. at 13. The district judge sentenced Santiestevan to 135 months of

imprisonment and three years of supervised release. Id. at 14, 17. Santiestevan

did not otherwise object to the district court’s sentence.

                                          3
       On appeal, Santiestevan contends that under Blakely v. Washington, 524

U.S. __, 124 S. Ct. 2531 (2004),1 the district court plainly erred by applying a six-

level upward enhancement to his sentence based on a quantity of drugs greater

than that charged in the indictment.

                                     II. DISCUSSION

       We review “a district court’s interpretation of the sentencing guidelines and

its application of the guidelines to the facts” de novo. United States v. Gunn, 369

F.3d 1229, 1237-38 (11th Cir.) (per curiam), cert. denied,             U.S. , 125 S. Ct. 324

(2004). When a defendant fails to make an objection or argument in the district

court, we review only for plain error. United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir. 2005), petition for cert. filed (U.S. Feb. 23, 2005) (No. 04-1148).

Under the plan error analysis, we may correct an error only where

       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. (internal quotations and citations omitted).



       1
          Although Santiestevan only referenced Blakely, the holding in Blakely was applied to the
federal sentencing guidelines in United States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005).
Therefore, we will treat Santiestevan’s claim as one raised under Booker. See United States v.
Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir. 2005).
                                                4
       The district court did not err by enhancing Santiestevan’s sentence based on

the quantity of drugs because Santiestevan’s sentence was not enhanced as a result

of a judicial finding that went beyond the facts admitted by Santiestevan.

Therefore, there is no Sixth Amendment violation under Booker. See United

States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). However, because the

district court sentenced Santiestevan under a mandatory guidelines scheme, his

sentence constitutes a Booker error, which is plain at the time of appellate review.

See id. at 1330-31. Because the district court expressed that it would depart from

the Guidelines if it had the discretion to do so and sentenced Santiestevan at the

lowest possible sentence under the Guidelines, 135 months, there is a reasonable

probability that the district court would have imposed a lesser sentence if the

Guidelines were not considered mandatory.2 See id. at 1332-33. Therefore,

Santiestevan has satisfied the first three prongs of the plain error analysis. Where

a district court has expressed the desire to impose a sentence less than that

available at the low end of the Guidelines, and the Supreme Court has held that the

district court has the discretion to impose such a reasonable sentence upon




       2
         Based on the quantity of drugs to which Santiestevan’s pled, Santiestevan faced a statutory
minimum sentence of 10 years, or 15 months less than the guidelines sentence he received. See 46
U.S.C. app. § 1903(g), 21 U.S.C. § 960(b)(1)(B).
                                                 5
consideration of the factors provided in 18 U.S.C. § 3553(a), the fourth prong of

the plain error analysis is satisfied. See id. at 1333-34.

                                III. CONCLUSION

      For the reasons stated above, we vacate Santiestevan’s sentence and remand

for re-sentencing.

      VACATED and REMANDED.




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