                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               March 28, 2006
                              No. 04-15882                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 04-00017-CR-01-3

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

CHARLES ANTHONY GARRETT,

                                                          Defendant-Appellant.


                        ________________________

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

                              (March 28, 2006)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:

     Charles Anthony Garrett appeals his 80-month sentence, imposed after he
pled guilty to maintaining a drug establishment, in violation of 21 U.S.C. §

856(a)(2). After review, we affirm Garrett’s sentence.

                                I. BACKGROUND

      Garrett pled guilty to maintaining a drug establishment after officers from

the Drug Enforcement Agency, the Wrightsville, Georgia Police Department and

the Johnson County, Georgia Sheriff’s Office executed search warrants to search

Garrett’s residence and surrounding properties and discovered 79.4 grams of

methamphetamine; 1.9 grams of pseudoephedrine; equipment commonly used to

manufacture methamphetamine; surveillance cameras; eighteen rifles; and one

handgun. In a storage shed on another parcel of property owned by Garrett,

officers found more equipment used to manufacture methamphetamine and

determined that the shed had been used as a methamphetamine lab. At his

sentencing hearing, Garrett testified that he had permitted others to use his property

to manufacture methamphetamine, and in exchange he was given some

methamphetamine for his personal use.

      At sentencing, the district court calculated Garrett’s base offense level using

the drug quantity tables in the Sentencing Guidelines. The 79.4 grams of

methamphetamine and the 1.9 grams of pure pseudoephedrine found in Garrett’s

residence combined had a total marijuana equivalency of 177.8 kilograms,



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resulting in a base offense level of 26 under U.S.S.G. § 2D1.1(c)(7). In addition,

the district court imposed a two-level enhancement under U.S.S.G. § 2D1.1(b)(1)

because of the proximity of some of the weapons to the methamphetamine and to

the lab found during the search. With an adjusted offense level of 28 and a

criminal history category of I, the district court concluded that Garrett’s Guidelines

range was 78 to 97 months’ imprisonment.

      During the sentencing hearing, Garrett objected to the finding that the

firearms found at his residence were connected to the underlying controlled

substance offense. Garrett claimed that he used his rifles to hunt and for target

practice and that he was repairing the handgun for a friend. He also objected to

using the amount of drugs discovered during the search to determine his base

offense level. Garrett argued that he was entitled to a four-level reduction of his

base offense level under U.S.S.G. § 2D1.8 because he had only minimally

participated in the underlying offense. The district court overruled Garrett’s

objections and sentenced Garrett to 80 months’ imprisonment. Garrett then

appealed his sentence.

                                 II. DISCUSSION

      On appeal, Garrett argues that the district court committed constitutional

error under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), when it



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enhanced his sentence based on drug quantity and firearm possession under a

mandatory system pursuant to the Sentencing Guidelines. Because Garrett did not

raise his Booker argument in the district court, we review his sentence for plain

error.1

          Under a plain error analysis, a defendant must show “‘(1) error, (2) that is

plain, and (3) that affects substantial rights.’” United States v. Rodriguez, 398

F.3d 1291, 1298 (11 th Cir.), cert. denied, 125 S. Ct. 2935 (2005) (quoting United

States v. Cotton, 533 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002)). If the

defendant is able to make a showing of all three, we then may exercise discretion

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

reputation of judicial proceedings.’” Id. (citation omitted). In the context of

Booker errors, “‘[a] defendant’s substantial rights are affected when there is a


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         We reject Garrett’s contention that he has preserved his constitutional Booker issue for
review and is entitled to a de novo review. To preserve a constitutional Booker error, a defendant
must either refer to the Sixth Amendment, Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000), or other related cases, or to the right to have the jury decide a disputed fact, or raise a
challenge to the role of the judge as fact finder with regard to sentencing. United States v. Dowling,
403 F.3d 1242, 1245 (11th Cir.), cert. denied, 126 S. Ct. 462 (2005). An objection based solely on
the sufficiency of the evidence is insufficient to preserve constitutional error. Id. Garrett never
referred to the Sixth Amendment, to a right to have the issue of drug quantity decided by a jury
rather than a judge, to any of Booker’s precursor cases, or to the judge’s inability to serve as a fact-
finder. Therefore, we must review Garrett’s claim for plain error. See Fed. R. Crim. P. 52(b);
Dowling, 403 F.3d at 1246-47.
        Garrett’s reliance on United States v. Paz, 405 F.3d 946 (11th Cir. 2005), is misplaced. In
Paz, the defendant specifically objected to the judge applying an enhancement based on facts that
were neither charged in the indictment nor admitted by him in his plea agreement. Paz, 405 F.3d
at 948. Here, unlike in Paz, Garrett made objections based only on the sufficiency of evidence and
did not explicitly raise or address the constitutional issue at or before the sentence hearing.

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reasonable probability that the district court would have imposed a different

sentence if the guidelines were not mandatory.’” United States v. York, 428 F.3d

1325, 1336 (11 th Cir. 2005) (citation omitted). In regard to the third prong, the

burden rests with the defendant to show prejudice. Rodriguez, 398 F.3d at 1299.

“Where errors could have cut either way and uncertainty exists, the burden is the

decisive factor in the third prong of the plain error test.” Id. at 1300.

      Here, Garrett was sentenced under a mandatory Guidelines scheme. Thus,

the first two prongs of the plain error test are satisfied. However, Garrett has not

carried his burden to show a reasonable probability of a different result if the

district court had applied the Sentencing Guidelines in an advisory rather than

mandatory fashion.

      If anything, the record shows the district court would not have imposed a

lower sentence under an advisory Guidelines system. The district court sentenced

Garrett to 80 months of imprisonment although it could have sentenced Garrett to

as low as 78 months under a mandatory Guidelines system. Had the district court

found the sentence under the mandatory Guidelines to be too harsh or

inappropriate, it likely would have sentenced Garrett to the lowest possible

sentence allowed. See United States v. Williams, 408 F.3d 745, 756 (11 th Cir.

2005) (finding no plain error where defendant was sentenced at the upper end of



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the guidelines range). Furthermore, the district court made numerous comments

during the sentencing hearing indicating that it found the 80-month sentence to be

appropriate under the circumstances. See United States v. Wood, 430 F.3d 1323,

1326 (11 th Cir. 2005) (finding defendant failed to satisfy third prong of plain error

test where district court had stated that the sentence given was “the appropriate

sentence” under the circumstances); York, 428 F.3d at 1336 (finding defendant

failed to meet third prong of plain error test where district court had noted that

sentence was “appropriate” in light of the facts).

      In sum, on this record, Garrett has not met his burden of showing a

reasonable probability that the result of sentencing would have been different but

for the Booker error and, thus, has not shown plain error. Accordingly, we affirm

Garrett’s 80-month sentence.

      AFFIRMED.




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