                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                       FILED
                         ________________________            U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                    June 9, 2005
                                 No. 04-12260
                                                                THOMAS K. KAHN
                           ________________________                   CLERK

                       D. C. Docket No. 03-60227 CR-WJZ

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                       versus

ALANDO BERRY,

                                                          Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________
                                 (June 9, 2005)


Before EDMONDSON, Chief Judge, BIRCH and COX, Circuit Judges.

PER CURIAM:

      Alando Berry appeals, challenging both his conviction and his sentence.

      Berry pleaded guilty to violating 18 U.S.C. § 922(g)(5)(B), which makes it a

crime for an alien admitted to the United States under a nonimmigrant visa to possess
a firearm. The district court accepted Berry’s guilty plea and sentenced him to 37

months in prison.

           During his plea colloquy, Berry insisted that he was in the United States

legally with a valid visa.1 And, Berry did not recant that position at sentencing.2 The

Government now believes that Berry had left the country and, at some point, illegally

reentered the United States. Berry never asked the district court to dismiss the

indictment. Nor did he ask leave to withdraw his guilty plea. The Government

concedes on this appeal that Berry should have been charged with violating §

922(g)(5)(A), and not § 922(g)(5)(B). Section 922(g)(5)(A) makes it a crime for an

alien who is in the United States illegally to possess a firearm. Nothwithstanding the

Government’s concession, however, the Government contends that our review is for

plain error, and that there is no plain error. We agree. Under plain error review, we

ask whether there is: “(1) error, (2) that is plain, and (3) that affects substantial

rights.” United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002).

If these three conditions are met, we then decide whether the error seriously affected

the fairness, integrity or public reputation of the judicial proceeding. Id.

       1
       At the guilty plea hearing, Berry asserted under oath that he entered the United States on a
non-immigrant visa. (R.2-12.)
       2
        At sentencing, the prosecutor said that upon further investigation, she believed that Berry
was not an overstay, but had reentered the country illegally. Defense counsel objected to this,
contending that no determination had been made as to Berry’s status. (R.3-5.)

                                                2
      We review Berry’s argument that there was an insufficient factual basis for his

guilty plea for plain error. See United States v. Vonn, 535 U.S. 55, 122 S. Ct. 1043

(2002). We conclude that the district court did not err, plainly or otherwise, by

relying on Berry’s own statement under oath that he was in the United States legally.

And, in light of the circumstances and the fact that the punishment for violating §

922(g)(5)(A) is the same as the punishment for violating § 922(g)(5)(B), even if we

assume error, the fairness, integrity, and public reputation of the judicial proceedings

have not been seriously affected. See United States v. Olano, 507 U.S. 725, 732, 113

S. Ct. 1770, 1776 (1993). We affirm Berry’s conviction.

      Berry challenges his sentence on several grounds. He contends, first, that the

district court erred by enhancing this sentence for obstruction of justice based on false

statements made by him; second, that the district court failed to make specific

findings as to how his false statements obstructed justice; and third, that the district

court erred by denying him an acceptance-of-responsibility reduction. The first and

third challenges are meritless, and the second one was not preserved by appropriate

objection following sentencing.

      For the first time on appeal, Berry asserts a constitutional challenge to the

district court’s imposition of sentence enhancements under the sentencing guidelines,

basing his challenge on Blakely v. Washington, 124 S. Ct. 2531 (2004). Because

                                           3
Berry did not raise this issue in the district court, we review only for plain error. See

Cotton, 535 U.S. at 631-32, 122 S. Ct. at 1785. Berry has demonstrated that there

was error, and that it is plain. Berry’s sentence was enhanced as a result of findings

made by the judge that went beyond the facts Berry admitted in pleading guilty. And,

although the error was not “plain” at the time of sentencing, “it is enough that the

error be ‘plain’ at the time of appellate consideration.” United States v. Rodriguez,

398 F.3d 1291, 1299 (11th Cir. 2005) (citing Johnson v. United States, 520 U.S. 461,

468, 117 S. Ct. 1544, 1549 (1997)). We conclude, however, that Berry has not

carried his burden to prove that this error has affected his substantial rights. See

Rodriguez, 398 F.3d at 1299-1306. It is unclear whether the district court would

have given Berry a different sentence under an advisory guideline scheme. The

district court’s sentence is, therefore, affirmed.

      AFFIRMED.




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