                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                 June 8, 2005
                                No. 04-13005
                                                             THOMAS K. KAHN
                            Non-Argument Calendar                CLERK
                          ________________________

                     D.C. Docket No. 03-00321-CR-MHS-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

      versus

EDWARD ANTHONY COLLIER,

                                                          Defendant-Appellant.

                         __________________________

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

                                  (June 8, 2005)

Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.

PER CURIAM:

      Pursuant to a plea agreement, appellant pled guilty to 10 counts of automatic

teller machine (“ATM”) fraud, which is proscribed by 18 U.S.C. §§ 1029(a)(2)
and 1029(a)(5), and the district court sentenced him to concurrent prison terms of

37 months.1 He now appeals his sentences.

       On pleading guilty, appellant admitted that the Government could prove

beyond a reasonable doubt that his fraudulent conduct had caused a loss of

approximately $250,000. The presentence report (PSR) prepared for the court by

its Probation Office fixed appellant’s base offense level at six, as required by

U.S.S.G. § 2B1.1(a), and enhanced that level by 14 levels, pursuant to U.S.S.G. §

2B1.1(b)(1)(H), because appellant, by engaging in the fraudulent conduct, had

intended to cause a loss of $750,000.2 After making further adjustments to the

base offense level and assigning appellant a criminal history category of II, the

PSR recommended a Guidelines sentence range of 33 to 41 months’ imprisonment.

Appellant objected to the PSR’s intended-loss determination, contending that he

should be held responsible only for $246,760, the amount of funds he had

withdrawn from the bank. The court overruled his objection, held him responsible

for a loss of $750,000, and imposed the sentences indicated above.




       1
        The district court’s judgment reflects only one sentence of 37 months’ imprisonment.
We construe the judgment as imposing such sentence on each of the counts of conviction, the
sentences to run concurrently.
       2
          The PSR noted that although appellant had deposited $750,000 of counterfeit checks
into a bank account but had withdrawn only $246,760 of that amount, he intended to create a
loss of $750,000.

                                               2
      Appellant appeals his sentences on a ground not presented to the district

court, to-wit: that Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531, 159

L.Ed.2d 403 (2004), precluded the court from finding an intended-loss amount

greater than the loss amount he admitted when he tendered his pleas of guilty. The

Supreme Court decided Blakely a few days after the district court sentenced

appellant. In Blakely, the court reviewed a sentence imposed under the state of

Washington’s guidelines sentencing system and held that the court could not

impose a sentence greater than the sentence justified by the facts on which a jury

based its verdict or the defendant admitted. 542 U.S. at ____, 124 S. Ct. at 2537.

After the parties briefed this appeal, the Court, in United States v. Booker, 543

U.S. ____, 125 S. Ct. 738, ___ L. Ed. 2d ____ (2005), extended Blakely to the

federal Guidelines sentencing system, holding there is “no distinction of

constitutional significance between the Federal Sentencing Guidelines and the

Washington procedures at issue [in Blakely].” See Booker, 543 U.S. at ___, 125

S.Ct. at 749. The Court explicitly reaffirmed the rationale first pronounced in

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.2d 435 (2000),

that “[a]ny fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of




                                          3
guilty or a jury verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.” Booker, 543 U.S. at ___, 125 S.Ct. at 756.

      In a second and separate majority opinion, the Court in Booker concluded

that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of

1984, the appropriate remedy was to “excise” two specific sections of the

Sentencing Reform Act of 1984—18 U.S.C. § 3553(b)(1) (requiring a sentence

within the guideline range, absent a departure) and 18 U.S.C. § 3742(e)

(establishing standards of review on appeal, including de novo review of

departures from the applicable guideline range)—thereby effectively rendering the

Guidelines advisory only. Id. at ___, 125 S.Ct. at 764. Accordingly, district courts

are now required to consider not only the applicable Guidelines range, see 18

U.S.C. § 3553(c), but also the full array of other sentencing factors enumerated in

18 U.S.C. § 3553(a), including the nature and circumstances of the offense, the

history and characteristics of the defendant, the need for adequate deterrence,

protection of the public, the pertinent Sentencing Commission policy statements,

and the need to avoid unwarranted sentencing disparities. Id. at ___, 125 S.Ct. at

764. The Court then announced that, under the remaining provisions of § 3742,

courts of appeals must review sentences for “unreasonable[ness].” Id. at ___, 125

S.Ct. at 765.



                                          4
       Booker transforms appellant’s Blakely argument for the vacation of his

sentences and a remand for resentencing into a Blakely/Booker argument. Since

he raises it for the first time in this appeal, we review his sentences for plain error.

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), pet. for cert.

filed, (U.S. Feb. 23, 2005) (No. 04-1148), rehearing en banc denied, United States

v. Rodriguez, — F.3d —, 2005 WL 895174 (11th Cir. Apr. 19, 2005). Under this

standard, we 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. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152

L.Ed.2d 860 (2002) (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).

       Rodriguez spells out this circuit’s approach in determining whether plain

error occurred because the district court enhanced the defendant’s sentence based

on facts not admitted by the defendant or found by a jury. In Rodriguez, we

readily concluded that error occurred and that it was plain. Here, as well, we

readily conclude that error occurred (when the court assessed the intended loss on



                                             5
facts the defendant did not admit and, because he pled guilty, a jury did not find),

and that the error is plain. We therefore move to the third prong of the plain error

test, whether appellant has shown that the error affected his substantial rights.

Rodriguez explains the defendant’s burden thusly:

      the burden truly is on the defendant to show that the error actually did
      make a difference: if it is equally plausible that the error worked in
      favor of the defense, the defendant loses; if the effect of the error is
      uncertain so that we do not know which, if either, side it helped the
      defendant loses. Where errors could have cut either way and
      uncertainty exists, the burden is the decisive factor in the third prong
      of the plain error test, and the burden is on the defendant.


Rodriguez, 398 F.3d at 1300.

      The record in this case contains no indication that the district court would

have imposed a lower sentence had it treated the Guidelines as advisory rather than

mandatory. Thus, appellant has not carried his burden of proving that the court’s

pre-Booker application of the Guidelines prejudiced his substantial rights. Because

there is no plain error here, appellant’s sentences are due to be affirmed.

      AFFIRMED.




                                           6
TJOFLAT, Circuit Judge, concurring specially:

       As I explain in my dissent to the court’s refusal to rehear Rodriguez en banc,

the error in a case such as this—where the district court enhances the defendant’s

sentence on the basis of facts not admitted by the defendant or found by a jury—is

structural error, and the third prong of the plain-error test is, therefore,

inapplicable. See United States v. Rodriguez, — F.3d —, 2005 WL 895174 (11th

Cir. Apr. 19, 2005) (Tjoflat, J., dissenting from the denial of rehearing en banc).

Accordingly, the court should consider whether the error “seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed.2d 508 (1993). The

court declines to do that because, as I agree, it is Rodriguez bound.




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