                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            NOV 6, 2006
                             No. 06-11837                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 92-00076-CR-006-WDO-5

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JAMES MARTIN,
a.k.a Tank,

                                                         Defendant-Appellant.


                       ________________________

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

                           (November 6, 2006)

Before DUBINA, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
       Appellant James Henry Lee Martin, III, appeals his 229-month 1 sentence

imposed in 1996 for possession with intent to distribute cocaine base, in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and for using and/or carrying a firearm

during and in relation to a drug trafficking offense, in violation of 18 U.S.C. §

924(c). Martin failed to directly appeal his sentence but, pursuant to a 28 U.S.C. §

2255 motion, the district court granted Martin permission to file an out-of-time

appeal based on the procedures set forth in United States v. Phillips, 225 F.3d

1198, 1201 (11th Cir. 2000).2 On appeal, Martin argues that the district court

imposed its original sentence in violation of 18 U.S.C. § 3553(c)(1) by failing to

articulate its reasons for sentencing within the guideline range. Martin also argues

that, when the district court originally sentenced him, it erred pursuant to United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) in



       1
          Martin was originally sentenced in 1994 but, upon a Fed.R.Crim.P. 35(b) motion submitted
by the government, Martin’s sentence was later reduced, in 1996, from 276 months imprisonment
to a total of 229 months’ imprisonment.
       2
         Pursuant to Phillips, the district court must follow the following procedure when granting
an out-of-time appeal as a remedy under 28 U.S.C. § 2255:

       (1) the criminal judgment from which the out-of-time appeal is to be permitted
       should be vacated; (2) the same sentence should then be reimposed; (3) upon
       reimposition of that sentence, the defendant should be advised of all the rights
       associated with an appeal from any criminal sentence; and (4) the defendant should
       also be advised that the time for filing a notice of appeal from that reimposed
       sentence is ten days, which is dictated by Rule 4(b)(1)(A)(i).

Phillips, 225 F.3d at 1201.

                                                2
believing that the guidelines were mandatory.

                        I. 18 U.S.C. § 3553(c)(1) requirement

      Martin first argues that his sentence must be vacated because the district

court failed to satisfy the requirement of 18 U.S.C. § 3553(c)(1), which requires

district courts to state reasons for the selection of the particular sentence imposed.

At the 1994 sentencing, the court simply stated that the sentence was made “in the

court’s best judgment.” At the last sentencing, the court failed to make any

remarks, factual findings or other comments on the “totality of [his]

circumstances,” such as criminal background, the particular facts of the case or any

other explanation as to why Martin was sentenced at the high end of the guideline

range. In any event, because the district court was instructed to resentence him to

the same sentence, any statement of reasons set forth at the resentencing would

have been irrelevant.

      The question of whether a court’s conduct at sentencing violated 18 U.S.C.

§ 3553(c)(1) is reviewed de novo, even absent an objection by the defendant. See

United States v. Williams, 438 F.3d 1272, 1274 (11th Cir.2006) (rejecting the

government’s argument that plain error review should apply and holding that a

review of whether § 3553(c)(1) was violated focuses exclusively on the

“sufficiency of the court’s conduct at sentencing, not that of the defendant”).



                                           3
      Pursuant to 18 U.S.C. § 3553(c)(1), a district court is required to state, in

open court, the reason for its particular sentence, and if the sentence “is of the kind,

and within the range [recommended by the guidelines,] and that range exceeds 24

months, the reason for imposing a sentence at a particular point within the range.”

18 U.S.C. § 3553(c)(1). Martin’s guideline range of 188 to 235 months spans 47

months, making § 3553(c)(1) applicable to his sentence.

      Recently, we explained in a post-Booker case that, as it held pre-Booker, “‘a

sentencing court should – when stating its reasons for imposing a particular

sentence as required by § 3553(c) – tailor its comments to show that the sentence

imposed is appropriate, given the factors to be considered as set forth in

§ 3553(a).’” United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006) (citing

United States v. Parrado, 911 F.2d 1567, 1572 (11th Cir.1990)). We explained

that “both before and after Booker, we have disapproved the imposition of

sentences with no consideration or mention of the § 3553(a) factors.” Bonilla, 463

F.3d at 1181 (citing Williams, 438 F.3d at 1274) (vacating and remanding sentence

for compliance with § 3553(c)(1), based on district court's failure to provide any

reason for life sentence); United States v. Veteto, 920 F.2d 823, 824, 826-27 (11th

Cir. 1991) (remanding for compliance with § 3553(c)(1) because the trial court

explained its sentence with the “truism” that the chosen punishment “seem[ed]



                                           4
right”). We explained, however, that:

      the requirement of § 3553(c)(1) ‘does not mean that a sentencing
      court must incant the specific language used in the guidelines which
      applies to each reason given, nor does it mean that a court must state
      that a particular factor is not applicable in a particular case. . . .
      Indeed, nothing in this Circuit’s precedent or Booker requires the
      district court, in its explanation of sentence under § 3553(c)(1), to
      articulate its consideration of each individual § 3553(a) factor,
      particularly where . . . it is obvious the court considered many of the §
      3553(a) factors.

Bonilla, 463 F.3d at 1182 (emphasis in original) (internal citation and quotations

omitted).

       The § 3553(a) factors to be considered by the district court include: (1) the

nature and circumstances of the offense and the history and characteristics of the

defendant; (2) the need to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense; (3) the need for

deterrence; (4) the need to protect the public; (5) the need to provide the defendant

with needed educational or vocational training or medical care; (6) the kinds of

sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy

statements of the Sentencing Commission; (9) the need to avoid unwanted

sentencing disparities; and (10) the need to provide restitution to victims. United

States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005); 18 U.S.C. § 3553(a).

      Applying the principles from Bonilla, we conclude that the district court



                                          5
complied with § 3553(c)(1) and a review of the record shows that the district court

considered the § 3553(a) factors, including the circumstances of the offense, the

history and characteristics of the defendant, the seriousness of the offense, the need

to protect the public, and the types of sentences available in relation to Martin’s

federal and state convictions. The district court stated more than Martin’s sentence

“seems right.” Thus, the district court met the § 3553(c)(1) requirements as its

comments show that the sentence was tailored in consideration of several of the §

3553(a) factors.

                             II. Booker statutory error

      Martin argues that the district court sentenced him in violation of Booker

because the district court believed that the guidelines were mandatory. Martin

concedes that no Sixth Amendment objection was made below with respect to the

guidelines and that this court will review his Booker claim for plain error. Martin

argues that he meets the first two prongs of the plain error test because his sentence

was established at a time when the application of the guidelines was clearly

mandatory and his case is on direct appeal for the first time. Martin concedes that

the original sentencing hearing record from 1994 was not sufficient to meet the

third prong, a showing that, but for the error, Martin would have received a

different sentence. However, Martin argues that the district court on remand in



                                           6
2005 had continued the first resentencing hearing to give him time to review the

record and present additional arguments, which shows that, at the very least, the

district court was interested in determining if the original sentence was actually in

“the Court’s best judgment.” The district court’s actions created a “colorful claim

that, had the guidelines not been mandatory, the sentencing judge would have

sentenced [him] to a lower sentence.”

      As an initial matter, there are two types of Booker errors: (1) Sixth

Amendment error based upon sentencing enhancements, imposed in a mandatory

system and neither admitted by the defendant nor submitted to a jury and proven

beyond a reasonable doubt (constitutional error); and (2) error based upon

sentencing under a mandatory guidelines system (non-constitutional, or statutory,

error). United States v. Shelton, 400 F.3d 1325, 1329-31 (11th Cir. 2005).

      Martin made no constitutional Sixth Amendment objection because, as he

concedes, he did not generally object on Sixth Amendment principles that the jury,

rather than a judge, should make all pertinent findings. Additionally, it is unclear

whether he properly raised a Booker statutory objection at the reimposition hearing

because, at first, his counsel stated “a general Booker objection insofar as the court

when sentencing Mr. Martin back in 1994 believe[d] that the guidelines were

mandatory,” but then stated that:



                                           7
       I know Mr. Martin wants to address the court, but I want the court to
       understand and Mr. Martin to understand that we are here on a very
       limited purpose this morning, as it’s simply to reimpose the same
       sentence.

Furthermore, to the extent that Martin raised a Booker statutory objection, since we

have explicitly held that a district court is directed to only reimpose a defendant’s

sentence and not address the merits of a defendant’s case, we are only required to

address the objections and sentence set forth at Martin’s original sentencing

hearing. See United States v. Parrish, 427 F.3d 1345, 1348 (11th Cir. 2005).

       Thus, as agreed to by Martin, his Booker statutory claim should be reviewed

for plain error since “[a]n appellate court may not correct an error the defendant

failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3)

that affects substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298

(11th Cir.), cert. denied, 125 S. Ct. 2935 (2005) (quotations and internal marks

omitted). “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. (quotations and

internal marks omitted).

       We have recognized that Booker errors satisfy prongs (1) and (2) of the plain

error test. See Rodriguez, 398 F.3d at 1298-99. However, to satisfy the third prong

of the plain error test, a defendant must show that the error actually made a

                                              8
difference. Id. at 1300. “[I]n applying the third prong, we ask whether 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.” Id. at 1301; see also

United States v. Curtis, 400 F.3d 1334, 1336 (11th Cir. 2005) (holding that the

defendant was not entitled to plain-error Booker relief because there was nothing in

the record to suggest the district court would have imposed a lower sentence under

an advisory guideline system, especially in light of the fact the court already had

sentenced him at the top of the guideline range).

      After reviewing the record, we conclude that Martin has not shown a

reasonable probability of a different result had the district court applied the

guidelines in an advisory manner pursuant to Booker. Moreover, like the

defendant in Curtis, Martin was sentenced to the maximum term of imprisonment

permitted by the relevant guideline, an action which we have considered

inconsistent with any suggestion that the sentencing judge might have imposed a

lesser sentence if the judge had realized the guidelines were advisory.

Additionally, Martin’s reliance on the district court’s continuation of the hearing to

reimpose his sentence pursuant to Phillips as a sign of the district court’s desire to

impose a lower sentence is misplaced because Martin only offers speculation that

the district court’s actions meant that it would have sentenced him to a lower



                                           9
sentence and the district court issued no statements of regret or concern as to the

severity of Martin’s sentence when it reimposed Martin’s sentence at the high end

of the guideline range.3 Thus, because Martin cannot satisfy the third prong, he

cannot establish plain error and we need not address the fourth prong.

       For the above-stated reasons, we affirm Martin’s sentence.

       AFFIRMED.




       3
         Additionally, we have explicitly held that a hearing is not required for the district court to
reimpose a sentence pursuant to Phillips and that the district court is directed to only reimpose a
defendant’s sentence and not address the merits of a defendant’s case. Parrish, 427 F.3d at1348
(holding that the district court did not err by resentencing the defendant without holding a hearing
because under Phillips the district court was required to resentence the defendant to the same
sentence originally imposed, and was not required to hold a resentencing hearing).

                                                  10
