                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           AUGUST 1, 2005
                             No. 04-12512
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                  D. C. Docket No. 03-00430-CR-RWS-1

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                  versus

ROMES BRUCE BIFFLE, JR.,
a.k.a. Romes Stubblefield,

                                                        Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________
                             (August 1, 2005)

                  ON REMAND FROM THE
            SUPREME COURT OF THE UNITED STATES



Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:

      On December 13, 2004, we issued an unpublished opinion affirming Romes

Bruce Biffle, Jr.’s (“Biffle”) 70-month sentence for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g), and possession of a sawed-off

shotgun, in violation of 26 U.S.C. § 5861. The Supreme Court vacated our

judgment and remanded the case to us for further consideration in light of its

decision in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). We

directed the parties to file supplemental letter briefs in light of the Supreme

Court’s remand. After reviewing these supplemental letter briefs and the

sentencing transcript, we find no error and affirm Biffle’s sentence.



                                   DISCUSSION

      Biffle first raised his Blakely/Booker, claim in his initial brief to our court.

Accordingly, we must review Biffle’s sentence for plain error. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

      A. Sixth Amendment Booker Error

      There is no Sixth Amendment error under Booker where a defendant, like

Biffle, admitted facts later used by the district court to enhance his sentence.

United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). Biffle pled guilty

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to possession of a firearm by a convicted felon. Pursuant to U.S.S.G. §

2K2.1(b)(5), the district court assessed Biffle a four-level increase in his base

offense level because it found that he had possessed the firearm in connection with

another felony offense, specifically obstruction of a police officer. Because Biffle

admitted the facts used by the district court to enhance his sentence, there is no

Sixth Amendment error under Booker. Shelton, 400 F.3d at 1329-30 (noting that

the Booker Court left undisturbed the Supreme Court’s holding in Almendarez-

Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), that “the

government need not allege in its indictment and need not prove beyond a

reasonable doubt that a defendant had [a] prior conviction for a district court to

use [that] prior conviction[] for purposes of enhancing a sentence”).

      B. Remedial Booker error

      The government concedes that there is statutory Booker error even in the

absence of a Sixth Amendment enhancement violation. See United States v.

Gallegos-Aguero, 409 F.3d 1274, 1276-77 (11th Cir. 2005). Because Biffle did

not raise his Booker claim in the district court, we will not correct any error unless

there is an error, that is plain, and that affects substantial rights. United States v.

Dowling, 403 F.3d 1242, 1247 (11th Cir. 2005). Only if all three of these

conditions are met may this court exercise its discretion to notice a forfeited error,

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and then only if “the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. (citation omitted).

      Since the district court sentenced Biffle based on judicially-found facts

under a mandatory Guidelines sentencing scheme, the sentencing procedure

employed by the district court constituted error, and that error was plain.

Rodriguez, 398 F.3d at 1298-99. Thus, the first two prongs of the plain error test

are met.

      However, Biffle fails to meet the third prong of the test. See id. at 1299

(stating that the defendant bears the burden of persuasion with respect to the third

prong). The burden of establishing the third prong, “is anything but easy.”

Shelton, 400 F.3d at 1332. To establish this prong, Biffle must establish that there

is a reasonable probability of a different result if the court had applied the

guidelines as merely advisory, instead of setting a mandatory sentencing range.

Id. at 1301. “A reasonable probability of a different result means a probability

sufficient to undermine confidence in the outcome. Shelton, 400 F.3d at 1332

(internal quotations and citation omitted).

      A review of the sentencing transcript indicates that at no time did the district

court express a desire to impose a sentence outside the Guidelines range. As such,




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Biffle cannot establish “reasonable probability of a different result.” Shelton, 400

F.3d at 1332. Hence, Biffle fails to meet the third prong of the plain error test.

      Our December 13, 2004, opinion is REINSTATED and Biffle’s sentence is

AFFIRMED.




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