                                                             [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 04-12649                 ELEVENTH CIRCUIT
                            Non-Argument Calendar            FEBRUARY 22, 2006
                          ________________________            THOMAS K. KAHN
                                                                   CLERK
                  D. C. Docket No. 03-00347-CR-T-24-MAP

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                     versus

PATRICK NEAL GILLESPIE,

                                                            Defendant-Appellant.

                          ________________________

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

                               (February 22, 2006)

              ON REMAND FROM THE SUPREME COURT
                     OF THE UNITED STATES

Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     The appeal of Patrick Neal Gillespie (“Gillespie”) is again before us,
pursuant to a remand from the Supreme Court of the United States for further

consideration in light of United States v. Booker, 125 S. Ct. 783 (2005). See

Gillespie v. United States, 126 S. Ct. 276 (2005). We previously affirmed

Gillespie’s conviction and twelve-month sentence for willful failure to pay

interstate child support, in violation of 18 U.S.C. § 228(a)(3). United States v.

Gillespie, 127 Fed. Appx. 472 (11th Cir. 2005).

      Because Gillespie raised a Booker-type claim in his initial brief on appeal,

but raised no such claim before the district court, we can review his sentence only

for plain error. Moreover, because the record indicates that Gillespie cannot

demonstrate a reasonable probability of a different result under the post-Booker

advisory guidelines system, we again affirm Gillespie’s sentence and reinstate in

part our prior opinion.

                                  BACKGROUND

      Gillespie pled guilty to one count of failure to pay interstate child support

obligations in excess of $10,000.00, in violation of 18 U.S.C. § 228(a)(3). During

his plea hearing, the government established the factual basis for the plea, detailing

Gillespie’s failure to pay child support orders from Florida and Ohio courts over

the course of several years. As part of this factual basis, the government stated that

as of February 28, 2003, state court records indicated that Gillespie was



                                           2
$31,158.03 1 in arrears on his child support obligations. The district court

specifically asked both Gillespie and his counsel whether they had any objections

or corrections to the facts recited by the government. Both responded in the

negative.2

       Pursuant to sections 2B1.1 and 2J1.1 of the Guidelines, the Pre-sentence

Investigation Report (“PSI”) calculated a base offense level of six. Based upon a

$33,197.97 loss resulting from the offense, the PSI added an additional six offense

levels. See U.S.S.G. § 2B1.1(b)(1)(D). The PSI further added two offense levels

because the offense involved violation of a prior specific judicial order. See

U.S.S.G. § 2B1.1(b)(7). After a downward adjustment for acceptance of

responsibility under § 3E1.1(b), the total offense level stood at 12. When

combined with Gillespie’s criminal history category (IV), the PSI indicated that the

guidelines imprisonment range was 21 to 24 months.

       Gillespie filed several objections to the PSI based upon: (1) the PSI’s

calculation of the start date for the offense conduct; and (2) the PSI’s inclusion of a



       1
        Because of payments made between the time of Gillespie’s plea and the date of his
sentencing, the loss amount at the time of sentencing was reduced to $29,236.81.
       2
          As discussed in our prior opinion in this case, the district court’s Rule 11 colloquy
technically failed to apprise Gillespie of the district court’s obligations to apply the sentencing
guidelines. However, as we previously held, Gillespie failed to object on this basis before the
district court and cannot show that the error affected his substantial rights. The Supreme Court’s
Booker remand does not affect our prior disposition of this Rule 11 issue.

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D.U.I. offense in the criminal history computation. Gillespie’s objections also

requested a downward departure based upon over-representation of criminal

history, under U.S.S.G. § 4A1.3. These objections did not raise the role of the

judge as a fact-finder, Gillespie’s right to jury determination of disputed facts

beyond a reasonable doubt, or any case in the line of Apprendi v. New Jersey, 530

U.S. 466 (2000). Moreover, Gillespie’s objections did not raise any factual

disputes.

       At sentencing, Gillespie withdrew his objection related to the D.U.I. offense

scoring. The district court then overruled his objections concerning the appropriate

start date for the offense conduct, and adopted the PSI’s criminal history

categorization. While stating that the “over representation of the criminal history

is a little more troubling to me and a little closer call”, the district court ultimately

declined to depart downward. The district court accepted the PSI’s guideline

calculation and factual basis, ultimately sentencing Gillespie to 21 months’

imprisonment – a sentence at the low end of the guideline range.

       Gillespie timely appealed. In his initial brief on appeal, Gillespie argued

that his Fifth and Sixth Amendment rights were violated when the district court

enhanced his sentence based on both his prior convictions and the child-support

amount, where neither of those facts were proven to a jury beyond a reasonable



                                             4
doubt. Gillespie’s arguments in this regard were predicated on Blakely v.

Washington, 124 S. Ct. 2531 (2004). Relying on then-binding Circuit precedent,

we rejected Gillespie’s sentencing arguments, holding that Blakely did not affect

the federal sentencing guidelines. Gillespie, 127 Fed. Appx. 472. Gillespie then

filed a petition for a writ of certiorari with the Supreme Court. The Supreme Court

granted that petition, vacating our opinion and remanding the case for further

consideration in light of Booker. Gillespie, 126 S. Ct. 276.

                            STANDARD OF REVIEW

      Though Gillespie raised sentencing objections before the district court, none

of those objections implicated the role of the judge as fact-finder, Gillespie’s jury

trial rights, or issues which could reasonably be construed as a Booker-type claim.

See United States v. Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005) (holding that

appellant’s non-constitutional sentencing objection failed to preserve Booker error,

where the objection made no reference to the Sixth Amendment, the role of judge

as fact-finder, the right to jury determination of disputed facts, or the Apprendi line

of cases).

      However, because Gillespie did explicitly raise a claim based on Blakely v.

Washington, 124 S. Ct. 2531 (2004) in his initial brief on appeal, we review his

sentence for plain error. United States v. Rodriguez, 398 F.3d 1291, 1297 (11th



                                           5
Cir. 2005). Under plain error review, appellate courts have a limited power to

correct errors that were not timely raised in the district court. United States v.

Olano, 507 U.S. 725, 731 (1993). We may not correct such an error unless: (i)

there is error; (ii) it is plain; and (iii) it affects substantial rights. Id. If these three

conditions are met, we may exercise our discretion to correct the error if it

seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Id.

                                       DISCUSSION

       Following Booker, a defendant’s Sixth Amendment rights are violated when

his sentence is enhanced under a mandatory guidelines system based upon any fact

(other than a prior conviction) that is neither admitted nor proven to a jury beyond

a reasonable doubt. Booker, 125 S. Ct. at 756. Furthermore, a defendant’s non-

constitutional rights are violated where he is sentenced under the mandatory

guidelines system that Booker has rendered advisory, even in the absence of

constitutional Booker error. United States v. Shelton, 400 F.3d 1325, 1330-31

(11th Cir. 2005).

       The sentence imposed here does not implicate Gillespie’s Sixth Amendment

rights because both Gillespie and his counsel indicated that they had no corrections

or objections to the loss amount as stated by the government. Accordingly, the



                                               6
district court’s reliance on that loss amount in determining Gillespie’s sentence

does not constitute constitutional Booker error. United States v. Burge, 407 F.3d

1183, 1191-92 (11th Cir. 2005) (where defendant admitted the facts contained in

the PSI, there was no Sixth Amendment Booker error). However, because the

district court sentenced Gillespie under the mandatory guidelines scheme, his

sentence does contain statutory Booker error. Shelton, 400 F.3d at 1330-31. That

error is now plain. Id. at 1331.

      However, it does not appear that under the third prong of the plain-error test,

Gillespie’s substantial rights have been affected. The third prong of plain error

review requires the defendant to demonstrate a reasonable probability of a different

result under the advisory guidelines system. Id. Where the effect of the error is

indeterminate or if we would be left to speculate, that burden has not been

satisfied. Id. at 1301. Similarly, the fact that the district court imposed a sentence

at the low end of the guidelines range, standing alone, does not satisfy this burden.

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

      After a close review of the record, we conclude that Gillespie has not shown

a reasonable probability of a lower sentence under the post-Booker advisory

sentencing system. While Gillespie focuses on the district court’s comment that it

“could go either way” on his motion for a downward departure, this statement at



                                           7
best leaves us to speculate as to the effect that the mandatory nature of the

guidelines had on Gillespie’s sentence. Moreover, the fact that the district court

sentenced Gillespie at the low end of the guidelines range does not alone satisfy the

third prong of plain error review. Fields, 408 F.3d at 1361. As such, Gillespie has

failed to demonstrate that the Booker error affected his substantial rights. See

United States v. Cartwright, 413 F.3d 1295, 1301 (11th Cir. 2005).

      Accordingly, we reinstate our prior opinion with the exception of our

discussion concerning Blakely’s application to the Guidelines, for which we

substitute the foregoing.

      OPINION REINSTATED IN PART; AFFIRMED.




                                           8
TJOFLAT, Circuit Judge, specially concurring:

      I concur in the court’s judgment because Gillespie failed to satisfy the third

prong of the plain-error test as that test is articulated in our precedent, e.g., United

States v. Shelton, 400 F.3d 1325, 1332 (11th Cir. 2005). That is, Gillespie has not

demonstrated “a reasonable probability of a different result under the advisory

guidelines system,” as Shelton requires. Ante at ___. Shelton acknowledges that

“it will be difficult for a defendant to establish the third prong in Booker-error

cases.” 400 F.3d at 1332 n. 8. What the defendant must do to establish the third

prong is point to something the district court said at the sentencing hearing –

specifically, statements indicating that were the Guidelines advisory rather than

mandatory, the court would impose a lesser sentence. The court made such

statements in Shelton, including a statement that a sentence at the bottom of the

Guidelines sentence range was “‘more than appropriate.” Id. at 1332. “All of [the

district court’s] comments taken together convinced [this court] that there is a

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

in Shelton’s case if it had not felt bound by the Guidelines.” Id. at 1332-33.

      In United States v. Thompson, I referred to our search for the sort of

statements that satisfied the third prong in Shelton as a search for “magic words.”

422 F.3d 1285, 1302 (11th Cir. 2005) (Tjoflat, J. specially concurring). I then said



                                            9
that a district judge who makes the sort of statements – uses the magic words – we

look for is in a very real sense “foster[ing] disrespect for the rule of law.” Id. at

1304. That is, in addition to telling the defendant that it is dissatisfied with the

punishment the Congress has provided, a punishment the court is bound by its oath

of office to impose, the district court is encouraging the defendant to “persist in

attacking his sentence on direct appeal and collateral review, notwithstanding that

its substance and the manner of its imposition are legally correct. After all, why

should the defendant not appeal a sentence that even the judge criticized as too

severe?” Id. at 1303-04. Under our third-prong test, “[a] defendant is rewarded

with a new sentencing hearing only if the sentencing judge took the entirely

inappropriate step of publically criticizing the law that required him to impose the

sentence. In contrast, a defendant whose sentence was imposed without gratuitous

comment by the sentencing judge is denied a new hearing.” Id. at 1305. As I

observed in Thompson, having defense counsel and the U.S. Attorney quibbling

over whether the sentencing judges’s words are magical enough to warrant a new

sentencing hearing “is as arbitrary as it is absurd.” Id.




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