                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                     FOR THE ELEVENTH CIRCUIT
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                       ________________________            September 16, 2005
                                                         THOMAS K. KAHN
                             No. 04-12828                       CLERK
                         Non-Argument Calendar
                       ________________________

                    D. C. Docket No. 03-00255-CR-WS


UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,

                                  versus

JASPER LAND HOLLAND,
                                                     Defendant-Appellant.

                       ________________________

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

                          (September 16, 2005)

    ON REMAND FROM THE UNITED STATES SUPREME COURT

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:
      This case is now before the Court on remand from the United States

Supreme Court for consideration of Holland’s sentence in light of United States v.

Booker, 543 U.S. 296, 125 S. Ct. 738 (2005). On direct appeal, we concluded that

because the circuits were split at the time, it was not obvious that Blakely v.

Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), applied to the Sentencing

Guidelines, and that Holland could not show plain error. United States v. Holland,

No. 04-12828, at 2-3 (11th Cir. Dec. 8, 2004) (unpublished). After review in light

of Booker, we reinstate our previous opinion and affirm Holland’s sentence.

                                I. BACKGROUND

A.    Plea Colloquy

      Jasper Land Holland pled guilty, without a written plea agreement, to

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).

In the factual resume submitted to the district court in support of Holland’s guilty

plea, Holland admitted the following facts. On January 24, 2003, Holland

knowingly was in possession of a Remington, .30-60 caliber rifle, which was

manufactured in New York. The firearm had been reported stolen. Holland

pawned the firearm at a pawn shop in Alabama. Before Holland pawned the

firearm, he had been convicted in Virginia of bigamy, a felony.

B.    PSI and Sentencing

                                          2
       The Presentence Investigation Report (“PSI”) recommended a base offense

level of 14, pursuant to U.S.S.G. § 2K2.1(a)(6)(A). The PSI further recommended

(1) a two-level increase, pursuant to U.S.S.G. § 2K2.1(b)(4), because Holland

possessed a stolen firearm; and (2) a three-level reduction, pursuant to U.S.S.G.

§ 3E1.1, for acceptance of responsibility, for a total offense level of 13.

       In calculating Holland’s criminal history score, the PSI included one point

for a 2000 state conviction for passing a worthless check. Another two points

were added, pursuant to U.S.S.G. 4A1.1(d), because, at the time of the instant

federal felon-in-possession offense, Holland was wanted on a probation violation

on a state offense.1 With a criminal history category of IV and an offense level of

13, Holland’s Guidelines range was 24-30 months’ imprisonment.

       Holland objected to the PSI’s calculation of his criminal history points,

arguing that category IV over-represented his criminal history. Holland moved for

       1
         Under U.S.S.G. § 4A1.1(d), two points should be added to a defendant’s criminal history
category “if the defendant committed the instant offense while under any criminal justice
sentence, including probation, parole, supervised release, imprisonment, work release, or escape
status.” U.S.S.G. § 4A1.1(d).
        According to the commentary,
        A defendant who commits the instant offense while a violation warrant from a prior
        sentence is outstanding (e.g., a probation, parole, or supervised release violation
        warrant) shall be deemed to be under a criminal justice sentence for the purposes of
        this provision if that sentence is otherwise countable, even if that sentence would
        have expired absent such warrant.
U.S.S.G. § 4A1.1(d) app. 4. Because Holland committed the instant felon-in-possession offense
while there was a warrant violation from a prior state sentence, Holland was deemed to be under
a criminal justice sentence for the purposes of the two-point increase under U.S.S.G. § 4A1.1(d).

                                               3
a downward departure under U.S.S.G. § 4A1.3(b), based on this over-

representation. At sentencing, Holland raised no objection to the criminal history

calculation, but he moved again for a downward departure under U.S.S.G.

§ 4A1.3(b). Holland argued that without the worthless check conviction, for

which he received a year probation, his criminal history category would be III.

Holland did not raise any constitutional claim to a jury trial on his criminal history

calculation, and Holland did not raise any constitutional issue pursuant to

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

       The district court concluded that there were no circumstances warranting a

downward departure, and sentenced Holland to 24 months’ imprisonment, the low

end of the Guidelines range.

C.     Direct Appeal

       In his prior direct appeal, Holland argued for the first time that the

Sentencing Guidelines were rendered unconstitutional by Blakely. As noted

above, this Court rejected that claim on direct appeal. Holland, No. 04-12828, at

2-3.

       After our decision on direct appeal, the Supreme Court decided Booker, and

Holland filed a petition for a writ of certiorari in the Supreme Court. On June 6,




                                           4
2005, the Supreme Court vacated our December 8, 2004 judgment and remanded

his case to this Court for further consideration in light of Booker.

                                        II. DISCUSSION

       Because Holland did not raise any constitutional issues in the district court

based on Apprendi, Blakely, or Booker, and instead raised these issues for the first

time in his prior direct appeal, our review of his sentence is only for plain error.

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S.

Ct. 2935 (2005).2

       Under Booker, “there are two kinds of sentencing errors: one is

constitutional and the other is statutory.” United States v. Dacus, 408 F.3d 686,

688 (11th Cir. 2005). “[T]he Sixth Amendment right to trial by jury is violated

where under a mandatory guidelines system a sentence is increased because of an

enhancement based on facts found by the judge that were neither admitted by the

defendant nor found by the jury.” Rodriguez, 398 F.3d at 1298. The statutory

error occurs when the district court sentences a defendant “under a mandatory



       2
         To establish plain error, the defendant must show “‘(1) error, (2) that is plain, and (3)
that affects substantial rights.’” Rodriguez, 398 F.3d at 1298 (quoting United States v. Cotton,
535 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002)). “‘If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.’” Id. (quoting Cotton,
535 U.S. at 631, 122 S. Ct. at 1785).

                                                   5
Guidelines scheme, even in the absence of a Sixth Amendment enhancement

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

       We first conclude that there is no Sixth Amendment violation in this case

because Holland admitted to the facts that were used to calculate his criminal

history score.3 Holland received two points under U.S.S.G. § 4A1.1(d) because

the felon-in-possession offense was committed while Holland had an outstanding

warrant for a probation violation. The fact that there was an outstanding warrant

for a probation violation was included in Holland’s PSI, and Holland failed to

make any factual objections to the PSI. Thus, Holland admitted that there was an

outstanding probation violation, which was sufficient to trigger the two-point

increase in U.S.S.G. § 4A1.1(d). See United States v. Burge, 407 F.3d 1183, 1191

(11th Cir. 2005) (“Burge waived his objections to the factual statements about his

relevant conduct in the presentence report and, therefore, admitted the facts in that

report.”); see also Shelton, 400 F.3d at 1330 (concluding that because defendant

raised no objections to the factual statements in the PSI and stated that he did not

dispute matters in the PSI, the defendant admitted to the facts in the PSI and there

was no Sixth Amendment violation).


       3
        In Holland’s prior appeal, we assumed without deciding that the two points that were
added to Holland’s criminal history calculation pursuant to U.S.S.G. § 4A1.1(d) constituted a
sentencing enhancement. We continue to make that assumption here.

                                               6
      Holland also received a two-level enhancement pursuant to U.S.S.G. §

2K2.1(b)(4) because he possessed a stolen firearm. There is no Sixth Amendment

violation as to this enhancement either because Holland admitted in the factual

resume that the firearm was stolen.

      Although there is no Sixth Amendment violation in this case, the district

court committed statutory Booker error in sentencing Holland under a mandatory

Guidelines regime. See Dacus, 408 F.3d at 688-89 (“The first prong of the plain

error test is easily satisfied. The district court erred when it sentenced Dacus

because it considered the Guidelines to be mandatory.”). Further, this error is now

plain under Booker. Id.

      However, Holland has failed to establish that any Booker error affected his

substantial rights. Rodriguez, 398 F.3d at 1301. In this case, the sentencing

record provides no basis for a conclusion that Holland has shown a reasonable

probability of a more lenient sentence under an advisory Guidelines regime. In

fact, the district court refused to depart downward. Further, although the district

court sentenced Holland at the low end of the Guidelines range, this Court has

held that “the fact that the district court sentenced the defendant to the bottom of

the applicable guidelines range establishes only that the court felt that sentence

was appropriate under the mandatory guidelines system. It does not establish a

                                          7
reasonable probability that the court would have imposed a lesser sentence under

an advisory regime.” United States v. Fields, 408 F.3d 1356, 1361 (11th Cir.

2005). Finally, in his supplemental brief to this Court after remand, Holland

acknowledges that he cannot satisfy the third prong of plain-error review in this

Circuit. He states that he merely desires to preserve his Booker claim for further

review by the Supreme Court. Thus, we conclude that Holland has not satisfied

the third prong of plain-error review.

      Accordingly, we reinstate all of our December 8, 2004 opinion affirming

Holland’s sentence.

      SENTENCE AFFIRMED; OPINION REINSTATED.




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