                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                MAY 4, 2005
                                No. 04-13640                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                      D. C. Docket No. 04-20215-CR-JLK

UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,

                                     versus

JOSE GREGORIO BALLESTERO,

                                                             Defendant-Appellant.


                          ________________________

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

                                (May 4, 2005)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Jose Ballestero appeals his sentence after pleading guilty to one charge of
importing one kilogram of more of heroin, in violation of 21 U.S.C. § 952(a). He

pled guilty on June 1, 2004, and was sentenced to 87 months’ imprisonment. On

appeal, he argues that the district court committed clear error in refusing to grant a

minor-role reduction, and claims that his sentence violates United States v. Booker,

___ U.S. ____ (2005), because the court sentenced him based on a drug amount

which was neither admitted nor found by a jury. Because we find evidence in the

record that the district court would have imposed a different sentence under an

advisory guidelines system, we vacate Ballestero’s sentence and remand for

resentencing.

      Ballestero was arrested at Miami International Airport on March 26, 2004,

after Customs inspectors discovered heroin his luggage. He admitted that he had

brought the heroin from Venezuela to the United States in exchange for money,

and said that someone named Jose Luis Palencia had supplied the drugs, paid for

his airline ticket, and given him $1000. He was to take the drugs to New York and

deliver them to a person he identified only as “Carmelo,” who was supposed to pay

him. Ballestero admitted that he had made a similar trip carrying drugs for

Palencia before. The day after his arrest, Ballestero agreed to go to New York with

two special agents from the Bureau of Immigration and Customs Enforcement

(“BICE”) to attempt to deliver the drugs, but the agents returned Ballestero to



                                           2
Miami without going through with the delivery.

      The Presentence Investigation Report (“PSR”) prepared by the United States

Probation Office recommended a guideline range of 87 to 108 months’

imprisonment. Under the guidelines, the amount of heroin seized called for a base

offense level of 34, but the PSR recommended a two-level reduction under the

safety-valve provision and a three-level reduction for acceptance of responsibility,

with a resulting total offense level of 29. Ballestero did not object to any of the

facts set out in the PSR, including the amount of heroin seized. He did, however,

object that he should receive a sentence reduction because he played a minor role

in the offense.

      The district court rejected Ballestero’s request for a minor role reduction, but

implicitly granted the two reductions recommended by the PSR. The court

sentenced Ballestero to 87 months’ imprisonment, the low end of the guidelines

range. Ballestero now appeals, arguing that the district court erred in denying a

minor role reduction and that his sentence violates Booker.

      Because Ballestero argues for the first time on appeal that his sentence

violates Booker, we review his sentence for plain error. See United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). In order to demonstrate plain

error, the appellant must show “(1) error, (2) that is plain, and (3) that affects



                                            3
substantial rights.” United States v. Cotton, 535 U.S. 625, 631 (2002) (internal

quotation marks omitted). Once these three requirements are shown, we may

reverse if “the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id.

      A sentence imposed pursuant to a mandatory guidelines system meets the

first two requirements of the plain error test, even if there is no constitutional error

present. See United States v. Shelton, 400 F.3d 1325, 1330-31. (11th Cir. 2005).

To determine whether such plain error satisfies the third prong of the plain error

test and affects Ballestero’s substantial rights, we must ascertain “whether there is

a reasonable probability of a different result if the guidelines had been applied in

an advisory instead of a binding fashion by the sentencing judge in this case.” See

Rodriguez, 398 F.3d at 1301. To do so, we examine the record for any indication

that the district court would have sentenced differently if not for the mandatory

nature of the sentencing guidelines. See id. at 1303-04.

      In this case, the district court sentenced Ballestero to 87 months’

imprisonment, based on an offense level of 29 and a criminal history category of

one. In doing so, the court implicitly accepted the recommendation of the PSR and

granted a three-level reduction for acceptance of responsibility and a two-level

reduction under the safety valve provision. In addition, in response to Ballestero’s



                                            4
request that he be sentenced to the low end of the guideline range, the court

responded that “I intend, of course, to sentence him at the lowest end of the

guideline, the lowest I can give him.”

       We find that this statement, together with the low-end sentence and the

reductions, demonstrates a reasonable probability that the court would have

imposed a different sentence if the guidelines had not been mandatory. Thus, we

conclude that Ballestero has demonstrated that his substantial rights were affected.

We therefore vacate Ballestero’s sentence and remand this case to the district court

for resentencing consistent with Booker.1



       VACATED AND REMANDED.




       1
         Because we remand for resentencing because of Booker error, we need not reach the
issue of whether the district court properly denied Ballestero’s request for a minor-role
reduction.

                                              5
