                                                           [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                  JUNE 7, 2005
                                 No. 04-11700                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                    D. C. Docket No. 03-00428-CR-T-26-TGW

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

      versus

JOSE MANUEL CABEZAS,

                                                              Defendant-Appellant.


                           ________________________

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

                                  (June 7, 2005)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Jose Manuel Cabezas appeals his 135-month sentence and conviction for

possession with intent to distribute 5 or more grams of cocaine in violation of 21
U.S.C. § 960(b)(1)(B)(ii) and the Maritime Drug Law Enforcement Act (MDLEA),

46 U.S.C. App. § 1903. First, Cabezas argues that the sentencing judge committed

plain error by considering the Federal Guidelines to be mandatory and making

enhancements based on judicial fact-finding in light of United States v. Booker,

543 U.S.___, 125 S. Ct. 738 (2005). Second, he argues that the district court erred

when it enhanced his sentence under U.S.S.G. § 2D1.1(b)(2)(B) for being a

“captain” of the drug-carrying vessel. Lastly, Cabezas argues that the MDLEA is

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000,) because it incorporates by reference the penalty provisions of

21 U.S.C. § 960 and allows a judge to decide “sentencing factors” that are more

properly submitted to a jury.

                             I. Cabezas’ Booker Challenge

       Cabezas failed to object to judicial fact-finding used to enhance his sentence

or to the mandatory application of the sentencing guidelines in the district court. In

his initial brief on appeal, Cabezas alleged that his sentence was unconstitutional in

light of the Supreme Court’s opinion in Blakely v. Washington, 542 U.S. ___, 124

S.Ct. 2531, 159 L.Ed.2d 403 (2004).1 Accordingly, we review for plain error. See

United States v. Dowling, 403 F.3d 1242, 1245-47 (11th Cir. 2005) (explaining


       1
               Because Booker was decided after briefing in this case was completed, we
requested and received supplemental briefing on Cabezas' Booker claim.

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what is required to preserve a Booker error and reviewing the defendant’s claim for

plain error because it was first raised in the initial brief on appeal).

       We have discretion to correct an error under the plain error standard where

(1) an error occurred, (2) the error was plain, (3) the error affected substantial

rights, and (4) the error seriously affects the fairness, integrity or public reputation

of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-36, 113 S. Ct.

1770, 1777-79 (1993).

       In United States v. Booker, 542 U.S. __, 125 S. Ct. 738 (2005), the Supreme

Court announced that sentencing enhancements made pursuant to mandatory

Federal Sentencing Guidelines and based on judicially found facts violated the

Sixth Amendment. Id. at ___, 125 S. Ct. at 747-50. Accordingly, the Court struck

the statute provisions making the Federal Sentencing Guidelines mandatory, and

rendered the guidelines effectively advisory. Id. at ___, 125 S.Ct at 756-57.

       In United States v. Rodriguez, 398 F.3d 1291(11th Cir. 2005), we applied

plain error analysis to a claim that the defendant's sentence violated his Fifth and

Sixth Amendment rights in light of Booker. 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. Applying the third prong, the court in



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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 advisory guidelines would have resulted in a lesser sentence. Id. at

1301.

        Similarly, Cabezas cannot show that his sentence would be any lower if the

judge understood the guidelines to be advisory rather than mandatory. Cabezas

argues that because he was sentenced at the lowest end of the guidelines range and

because the judge refused to depart downward in order to achieve sentencing parity

with his co-defendants, he has met his burden and demonstrated that the mandatory

guidelines resulted in an increased sentence. However, it simply does not follow

that a judge’s refusal to depart downward based on sentencing parity somehow

indicates a reasonable probability that the judge would depart in an advisory

regime. A sentence at the lowest end of the guidelines range, by itself, is

insufficient to demonstrate a reasonable probability that the judge would depart

from the guidelines altogether in an advisory system. See United States v. Fields,

__F.3d__, 2005 WL 1131778 at *4 (11th Cir. May 16, 2005) (“We agree with the



                                          4
First, Fourth, Fifth, and Eighth Circuits 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 reasonable probability that the

court would have imposed a lesser sentence under an advisory regime.”). Thus,

Cabezas cannot satisfy the third prong of the plain error test because he cannot

show that the Booker error affected his substantial rights.

              II. Cabezas’s Challenge to Being Found a “Captain”

       Cabezas argues that he was a captain in name only, not in the functions he

actually performed on the boat, making the sentencing court’s enhancement under

U.S.S.G. § 2D1.1(b)(2)(B) inappropriate.

       We review “a district court’s findings of fact for clear error.” United States

v. Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003). Under U.S.S.G. §

2D1.1(b)(2)(B), a defendant’s sentence is increased two levels if he “acted as a

pilot, copilot, captain, navigator, flight officer, or any other operation officer

aboard any craft or vessel.” The guidelines do not define “captain,” although in

Rendon we noted that decisions interpreting it have “declined to adopt a rigid

definition.” Rendon, 354 F.3d at 1329. We also cited two decisions from other

circuits holding that a defendant need only “act as” a captain to warrant an



                                            5
enhancement, and need not possess any “special navigational rank or skills.” Id.

(citations omitted).

      The evidence showed that Cabezas had been serving as the captain of ships

since he was 26, admitted he recruited the personnel, slept in one of the two state

rooms, and initially told the Coast Guard that he was the captain, well before he

tried to recant or explain away his statement. Furthermore, even if “navigational

rank or skills” are not required, Cabezas’s ability to navigate a ship, and skills as a

captain, whether or not he knew how to use a sophisticated GPS device, could only

serve to bolster the district court’s ultimate determination that he was a “captain”

of the boat within the meaning of § 2D1.1(b)(2)(B).

                       III. Constitutionality of the MDLEA

      Finally, Cabezas argues that the penalty provisions in 21 U.S.C. § 960,

referenced by the MDLEA, are unconstitutional under Apprendi, and because those

provisions are not severable from the crimes they penalize, both Cabezas’ sentence

and conviction are void. However, Cabezas waived his right to challenge the

constitutionality of § 960 and the MDLEA under Apprendi because he

unconditionally pled guilty to the charge.

      We have held that “[a] defendant's unconditional plea of guilty, made

knowingly, voluntarily, and with the benefit of competent counsel, waives all



                                             6
non-jurisdictional defects in that defendant's court proceedings.” United States v.

Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997) (quotation and citation omitted).

Furthermore, we have held that “[Apprendi] claims are not jurisdictional.” United

States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001).

      Here, the lynchpin of Cabezas’ constitutional argument is that Apprendi

renders unconstitutional the penalty provisions of 21 U.S.C. § 960(b). Because

Apprendi claims are not jurisdictional, and Cabezas’s unconditional guilty plea

waived his right to challenge all non-jurisdictional defects, we decline to address

the merits of his challenge.

      Upon review of the record and consideration of the parties’ briefs, we

discern no reversible error. Accordingly, Cabezas’ 135-month sentence and

conviction are

      AFFIRMED.




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