                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                       FILED
                                                                 U.S. COURT OF APPEALS
                                No. 04-10319                       ELEVENTH CIRCUIT
                            Non-Argument Calendar                      JUNE 10, 2005
                          ________________________                  THOMAS K. KAHN
                                                                         CLERK
                   D.C. Docket No. 03-00143-CR-T-27-TGW

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

      versus

CARLOS ISRAEL COSME,

                                                         Defendant-Appellant.

                         __________________________

               Appeal from the United States District Court for the
                           Middle District of Florida
                         _________________________
                                (June 10, 2005)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

      Carlos Israel Cosme appeals his conviction and 21-month sentence for

conspiracy to defraud the United States and aiding and abetting the presentation of
a false claim to the IRS, in violation of 18 U.S.C. §§ 2, 286, 287. On appeal, he

argues that the district court (1) abused its discretion by denying his motion to

dismiss the indictment based on alleged government misconduct before the grand

jury, and (2) erred by imposing an eight-level upward adjustment to his sentence

based on facts not charged in the indictment or proven to a jury.

                                          I.

      Cosme argues that the government committed misconduct before the grand

jury when the prosecutor and a government witness mischaracterized Cosme’s

affidavit as a confession. He contends that the grand jury impermissibly relied on

the statements and mischaracterizations of the prosecutor and the witness such that

the indictment should be dismissed.

      We review a “challenge to the district court’s denial of [a] motion to dismiss

the indictment under the abuse of discretion standard.” United States v. Waldon,

363 F.3d 1103, 1108 (11th Cir.), cert. denied, 125 S.Ct. 208 (2004). The Fifth

Amendment provides, “No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ”

U.S. Const. amend. V. “A grand jury need find only that there is probable cause to

believe that a crime was committed and that the defendant was the party who




                                          2
committed the crime.” United States v. Jennings, 991 F.2d 725, 729 (11th Cir.

1993).

      “[A]s a general matter, a district court may not dismiss an indictment for

errors in grand jury proceedings unless such errors prejudiced the defendants.”

Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S.Ct. 2369, 2373,

101 L.Ed.2d 228 (1988). “[D]ismissal of the indictment is appropriate only if it is

established that the violation substantially influenced the grand jury’s decision to

indict, or if there is ‘grave doubt’ that the decision to indict was free from the

substantial influence of such violations.” Id. at 256, 108 S.Ct. at 2374 (internal

quotations omitted). Additionally, the Supreme Court has noted that a petit jury’s

subsequent guilty verdict renders “any error in the grand jury proceeding

connected with the charging decision [] harmless beyond a reasonable doubt.”

United States v. Mechanik, 475 U.S. 66, 70, 106 S.Ct. 938, 942, 89 L.Ed.2d 50

(1986) (citing racial discrimination in the composition of the grand jury as an

exception).

      In Bank of Nova Scotia, the Supreme Court considered whether, among

other things, dismissal of the indictment was warranted where prosecutors caused

IRS agents “to ‘summarize’ evidence falsely and to assert incorrectly that all the

evidence summarized by them had been presented previously to the grand jury.”

                                           3
Bank of Nova Scotia, 487 U.S. at 260, 108 S.Ct. at 2376. The Court held that

“[b]ecause the record does not reveal any prosecutorial misconduct with respect to

these summaries, they provide no ground for dismissing the indictment.” Id. The

Court further held that “[t]o the extent that a challenge is made to the accuracy of

the summaries, the mere fact that evidence itself is unreliable is not sufficient to

require a dismissal of the indictment.” Id. at 261, 108 S.Ct. at 2377.

      The district court did not abuse its discretion by denying Cosme’s motion to

dismiss the indictment. In the affidavit given to the grand jurors, Cosme admitted

he allowed his niece to use his computer to file tax returns, charged a fee for the

service, collected customers’ refunds in his personal bank accounts, was aware his

niece was submitting false W-2s, and kept a tax refund based on a false W-2. The

government witness’s testimony before the grand jury was consistent with the

statements made in the affidavit. The witness’s other testimony provided

additional unchallenged evidence upon which the grand jury could have relied.

Further, the witness’s testimony, even if inaccurate, is not sufficient to require

dismissal of the indictment. In addition, Cosme concedes in his brief that his

affidavit was “at most, a quasi-confession only as to count three of the

indictment.”




                                          4
      Cosme has not demonstrated prejudice resulting from the grand jury's

indictment or "grave doubt" that the decision to indict was free from substantial

influence. Bank of Nova Scotia, 487 U.S. at 256, 108 S. Ct. at 2374.

Additionally, the petit jury’s guilty verdict renders any grand jury error harmless.

Therefore, the district court did not abuse its discretion by denying Cosme’s

motion to dismiss the indictment based on alleged government misconduct before

the grand jury.

                                           II.

      Cosme argues that the district court could only constitutionally sentence

him based on the facts alleged in the indictment and proven to the jury beyond a

reasonable doubt. He concedes that he did not raise the claim at the district court

level, and that plain error is the appropriate standard of review. 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).

      We apply plain error to Cosme's claim in light of United States v. Booker,

542 U.S. at __, 125 S. Ct. 738 (2005), which was decided subsequent to Cosme's

                                           5
appeal. In Booker, the Supreme Court issued two separate majority opinions. Id.

First, Justice Stevens wrote for the Court and held that the rule announced in

Blakely applied to the Guidelines. Booker, 542 U.S. __, 125 S. Ct. at 745. He

based his opinion on the premise that the Guidelines were mandatory and imposed

binding requirements on all sentencing judges. Id. at ___, 125 S. Ct. at 749.

Second, and in light of Justice Stevens’ holding, Justice Breyer wrote for the

Court and invalidated two provisions of the Sentencing Reform Act of 1984 that

had the effect of making the Guidelines mandatory. Id. at ___, 125 S.Ct at 756.

The Court instructed that both holdings – the Sixth Amendment holding and the

remedial interpretation of the Sentencing Act – should be applied to all cases on

direct review. Id. at 769.

       In United States v. Rodriguez, we applied plain error analysis to a claim

that the defendant's sentence violated his Fifth and Sixth Amendment rights in

light of Booker because it was based on a judge's finding of facts that were neither

charged in an indictment nor proven to a jury. 398 F.3d 1291(11th Cir. 2005). 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. The court stated

that the error was not that there were "extra-verdict enhancements" that led to an

                                          6
increase in the defendant's sentence, but rather that those enhancements were

applied in a mandatory guideline system. Id. at 1300.

      Applying the third prong, the court in 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 it was any

more likely that the error – applying the Guidelines as mandatory as opposed to

advisory – resulted in a greater sentence rather than a lesser one. Id. at 1301. In

other words, the defendant could not show that the error "affected his substantial

rights" because he could not show that it worked to his disadvantage rather than to

his advantage.

      Similarly, Cosme cannot show that the Booker error in this case affected his

substantial rights by resulting in a greater sentence. Indeed, the judge imposed a

21 month sentence after finding that the Guidelines yielded a range of 15 to 21

months. This decision to sentence Cosme to the highest possible sentence that

could permissibly be imposed in the then mandatory Guidelines system indicates,




                                          7
if anything, that the judge might have imposed an even higher sentence if he had

the additional discretion provided by the advisory system.

      For the foregoing reasons, we affirm the district court.1

      AFFIRMED.




      1
            Appellant's request for oral argument is denied.
                                             8
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).2 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 consider this issue because, as I

agree, it is bound by the prior-panel rule, to-wit: Rodriguez’s holdings.




       2
         In this case, the district court enhanced Cosme’s base offense level of 6 by 8 levels.
Combined with a category I criminal history, offense level 6 yielded a Guidelines sentence range of
0 to 6 months of imprisonment, whereas offense level 8 called for a sentence of 15 to 21 months’
imprisonment. The presentence report submitted to the court by its probation office stated, in
paragraph 81, that “there is no apparent basis for departure.” Thus, had the court not enhanced
Cosme’s base offense level by 8 levels, the maximum sentence the court could have imposed would
have been 6 months’ imprisonment, 15 months less than Cosme received.
                                                9
