                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                FILED
                                                       U.S. COURT OF APPEALS
                       ________________________          ELEVENTH CIRCUIT
                                                             JUNE 17, 2005
                             No. 03-12849                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                     D. C. Docket No. 02-00203-CR-CG

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                  versus

NURY DEJESUS ARBELAEZ,

                                                         Defendant-Appellant.
                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                      _________________________
                            (June 17, 2005)

                   ON REMAND FROM THE
             SUPREME COURT OF THE UNITED STATES


Before ANDERSON, CARNES and HULL, Circuit Judges.

PER CURIAM:

     We previously affirmed the conviction in this case. See United States v.
Arbelaez, No. 02-00203 (11th Cir. June 4, 2004). The Supreme Court has vacated

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

Booker v. United States, 543 U.S. __, 125 S.Ct. 738 (2005). Having reconsidered our

decision pursuant to the Supreme Court's instructions, we reinstate our judgment

affirming the conviction and affirm the sentence.

      In Booker, the Supreme Court did two things: first, following Blakely v.

Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), it held that sentence

enhancements based solely on judicially found facts pursuant to the mandatory

Federal Sentencing Guidelines violated the Sixth Amendment; and second, it

rendered the guidelines effectively advisory in order to comport with the Sixth

Amendment by excising those provisions of the statute that made the guidelines

mandatory. Id. at ___,125 S.Ct. at 749-51, 764.

      Arbelaez argues that the district court erred by applying a mandatory guideline

sentence. In her initial brief on appeal, Arbelaez argued that the district court

violated the doctrine of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000) by failing to providing a specific breakdown of drug quantity on the jury form,

and only submitting the question of whether the amount of cocaine involved in her

offense was over or under 5 kilograms. She did not raise this challenge or any

challenge to the constitutionality of her sentence in the district court. Accordingly,

                                          2
we review for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005) (stating that because defendant did not raise a Sixth Amendment challenge

in the district court, our review is only for plain error).

      In United States v. Rodriguez, we applied plain error analysis to a claim that

the defendant's sentence violated his Fifth and Sixth Amendment rights in light of

Booker because it was based on a judge's finding of facts that were neither charged

in an indictment nor proven to a jury. 398 F.3d 1291(11th Cir. 2005). The Rodriguez

opinion stated that a sentence enhancement based on a fact, other than a prior

conviction, found solely by the judge in a mandatory guideline system met the first

and second prongs of the plain error test. Id. at 1298-99. The court stated that the

error was not that there were "extra-verdict enhancements" that led to an increase in

the defendant's sentence, but rather that those enhancements were applied in a

mandatory guideline system. Id. at 1300.

      Applying the third prong, the court in Rodriguez then asked "[w]hether there

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

an advisory instead of binding fashion by the sentencing judge in this case." Id. at

1301. Emphasizing that the defendant bore the burden of persuasion with respect to

prejudice, the court in Rodriguez found that the defendant could not meet his burden

because the record provided no indication that it was any more likely that the error

                                            3
– applying the Guidelines as mandatory as opposed to advisory – resulted in a greater

sentence rather than a lesser one. Id. at 1301. In other words, the defendant could not

show that the error "affected his substantial rights" because he could not show that

it worked to his disadvantage rather than to his advantage.

       Similarly, Arbelaez cannot show that the Booker error in this case affected her

substantial rights by resulting in a greater sentence because she cannot point to

anything indicating that the judge would have imposed a lesser sentence in an

advisory system.1 Indeed, the judge sentenced Arbelaez at the high end of the

guideline range, which indicates that Arbelaez would not receive a lesser sentence in

the advisory system.

       For the foregoing reasons, we reinstate our opinion affirming her conviction

and affirm her sentence.

       AFFIRMED.




       1
              Nothing in Booker undermines the legitimacy of Arbelaez' conviction because
Booker only addresses the sentencing phase.

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