                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________  ELEVENTH CIRCUIT
                                                               SEPTEMBER 12, 2005
                                 No. 04-11535                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                        D.C. Docket No. 02-14052-CR-JIC

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

      versus

TREMAINE N. TIMOTHY,

                                                           Defendant-Appellant.

                         __________________________

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

                               (September 12, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Tremaine Timothy appeals his convictions and 420-month sentence for:

(1) possession with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B), based upon his May 10, 1998, arrest, (Count I);

(2) possession of a firearm during and in relation to a drug trafficking offense, in

violation of 18 U.S.C. § 924(c)(1)(A), based upon his May 10th arrest (Count II);

(3) possession with intent to distribute five grams or more of cocaine base, in

violation of § 841(a)(1) and (b)(1)(B), based upon his May 23, 1998, arrest,

(Count III); and (4) possession of a firearm during and in relation to a drug

trafficking offense, in violation of § 924(c)(1)(A) and (C), based upon his May

23rd arrest (Count IV).

      Timothy raises the following issues on appeal: whether the district court

erred by failing to grant his motions to suppress evidence and dismiss the

indictment; whether the district court erred by denying his motion for judgment of

acquittal as to his convictions for possession of firearms in furtherance of drug-

trafficking offenses; and whether the district court plainly erred by sentencing

Timothy pursuant to a mandatory application of the Sentencing Guidelines, in

light of United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). We address

each argument in turn.

  I.Magistrate Judge’s Denials of Motions to Suppress Evidence and Dismiss
                                 Indictment




                                          2
       On appeal, Timothy argues that the district court erred by failing to grant his

motions to suppress evidence obtained as a result of his May 23, 1998, arrest and

his May 10, 1998, arrest, and his motion to dismiss the indictment based upon a

claim of double jeopardy. The magistrate judge recommended denying Timothy’s

motion to dismiss the indictment, as well as his motions to suppress. The parties

were given ten days within which to file objections to the magistrate’s

recommendation, but no objections were filed, and the district court never ruled on

the motions. Ultimately, a jury convicted Timothy on all counts of the indictment.

       “The law is settled that appellate courts are without jurisdiction to hear

appeals directly from federal magistrates.” United States v. Renfro, 620 F.2d 497,

500 (5th Cir. 1980).1 In Renfro, the defendant presented a motion to a magistrate,

who, after a full hearing, issued an order denying the motion. Id. at 499-500. The

defendant did not “raise[] the possibility that the magistrate erred” until a post-trial

motion. Id. at 500. We held that the defendant’s appeal must be dismissed, noting

that the defendant had “deprived the trial judge of his ability to effectively review

the magistrate’s holding,” and was “in essence. . . appealing a magistrate’s

decision directly to this Court.” Id.



       1
        In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

                                               3
      In United States v. Brown, 299 F.3d 1252, 1259 (11th Cir. 2002) (“Brown

I”), vacated and remanded, Brown v. United States, 538 U.S. 1010, 123 S. Ct.

1928 (2003), the district court referred a case to a magistrate for a report and

recommendation on the defendant’s motion. Rather than submit a report and

recommendation, however, the magistrate issued an order denying the motion.

Brown I, 299 F.3d at 1259. We noted that “[n]o order entered directly by the

district court on [the] matter appear[ed] in [the] record, nor [was] there any

indication from the record that Brown . . . ever raised the issue before the district

court for review of the magistrate judge’s order.” Id. We held that we were

“without power to review the denial” of the motion, as an appeal from a

magistrate’s ruling must be made to the district court. Id. at 1260. On remand

from the Supreme Court, following the vacation of its original decision, we, noting

that we were “bound by Renfro, unless and until it is overruled by this court en

banc or by the Supreme Court,” reinstated our original decision. United States v.

Brown, 342 F.3d 1245, 1246 (11th Cir. 2003) (“Brown II”), cert. denied, 125 S.

Ct. 37 (2004).

      Because Timothy failed to file objections to the magistrate’s

recommendations or to insist that the district court rule on his motions to suppress

and dismiss the indictment, Timothy essentially is appealing the magistrate’s

                                           4
recommendations directly to this Court, which is without power to review the

magistrate’s recommendations. Accordingly, we dismiss Timothy’s appeal with

regard to this issue.

                  II.Denial of Motion for Judgment of Acquittal

        Citing Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501 (1995),

Timothy argued that “there was a complete absence of testimony related to the

firearms and the government never attempted to present any evidence that firearms

were ‘actively employed’ during the alleged trafficking offenses.” However, since

Bailey, Congress has expanded 18 U.S.C. § 924(c) to permit convictions for

possession of a firearm “in furtherance of” a drug-trafficking offense, in addition

to “active employment.”

        We review de novo the disposition of a defendant’s properly preserved

motion for judgment of acquittal. United States v. Perez-Tosta, 36 F.3d 1552,

1556 (11th Cir. 1994). We need only determine whether “a reasonable fact-finder

could conclude that the evidence established the defendant’s guilt beyond a

reasonable doubt.” United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001)

(internal quotations and citation omitted). “[R]easonable inferences, and not mere

speculation, must support the jury’s verdict” of guilty. Perez-Tosta, 36 F.3d at

1557.

                                          5
      Section 924(c)(1)(A) states:

      Except to the extent that a greater minimum sentence is otherwise
      provided by this subsection or by any other provision of law, any
      person who, during and in relation to any crime of violence or drug
      trafficking crime (including a crime of violence or drug trafficking
      crime that provides for an enhanced punishment if committed by the
      use of a deadly or dangerous weapon or device) for which the person
      may be prosecuted in a court of the United States, uses or carries a
      firearm, or who, in furtherance of any such crime, possesses a firearm,
      shall, in addition to the punishment provided for such crime of
      violence or drug trafficking crime--

      (i) be sentenced to a term of imprisonment of not less than 5 years;

      (ii) if the firearm is brandished, be sentenced to a term of
      imprisonment of not less than 7 years; and

      (iii) if the firearm is discharged, be sentenced to a term of
      imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A).

      In United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002), we

“analyze[d] . . . , for the first time, the sufficiency of the evidence required to

support a conviction for possession of a firearm in ‘furtherance of’ a drug

trafficking crime.” Noting that “furtherance” means “a helping forward,” we

concluded that “a conviction under this portion of § 924(c) requires that the

prosecution establish that the firearm helped, furthered, promoted, or advanced the

drug trafficking.” Id. (citation omitted). We explained that Congress intended



                                            6
that the government be required to “illustrate through specific facts, which tie the

defendant to the firearm, that the firearm was possessed to advance or promote the

criminal activity.” Id. In other words, “there must be ‘a showing of some nexus

between the firearm and the drug selling operation.’” Id. at 1253.

      In the instant case, Detective Babcock testified, regarding the May 10th

arrest, that he observed Timothy exit the vehicle holding a brown bag, which he

later found contained drugs, and a black object, which he later determined was a

firearm. Detective Babcock further testified that he subsequently observed

Timothy attempting to bury the firearm and bag in the ground. Officer Koehn

testified, regarding the May 23rd arrest, that he observed Timothy unlock the

glove box, using a key hanging from a lanyard around his neck. Officer Hennings

testified that, after being informed by Officer Koehn regarding Timothy having

placed a firearm in the glove box, he asked Timothy for the lanyard and opened

the glove box, at which time he found the firearm, previously seen by Officer

Koehn, and several plastic baggies containing drugs. Agent Kent testified that the

quantity and packaging of the cocaine base recovered during the searches was

“indicative of possession to sell,” and not of personal use.

      Because the government established the required “nexus” between the

firearms and the drug trafficking offenses, and a reasonable jury could have

                                          7
concluded that the evidence established Timothy’s guilt beyond a reasonable

doubt, the district court did not err by denying Timothy’s motion for judgment of

acquittal, and we affirm his convictions.

                                   III.Booker Error

       Timothy also argues that, based upon United States v. Booker, 543 U.S. ___,

125 S. Ct. 738 (2005), the district court plainly erred by sentencing him pursuant

to a mandatory application of the Sentencing Guidelines, and his sentence should

be “reversed” and remanded for resentencing.

       Because Timothy did not raise a constitutional challenge to his sentence in

the district court, we review his appellate claims regarding the constitutionality of

his sentence for plain error. See United States v. Shelton, 400 F.3d 1325, 1328

(11th Cir. 2005). To satisfy the plain-error standard, we must find that (1) the

district court committed error, (2) that was plain or obvious, and (3) that affected

his substantial rights. Id. at 1328-29. If these criteria are met, we may, in our

discretion, correct the plain error if it “seriously affect[s] the fairness, integrity, or

public reputation of judicial proceedings.” Id. at 1329.

       We have explained that there are two types of Booker error: (1) Sixth

Amendment error based upon sentencing enhancements neither admitted by the

defendant nor submitted to a jury and proven beyond a reasonable doubt; and (2)

                                             8
statutory error based upon sentencing under a mandatory guidelines system. Id. at

1329-31. In the instant case, there was no constitutional error, as the indictment

alleged, and the jury subsequently found, that Timothy possessed with intent to

distribute five or more grams of cocaine base. The district court, however,

committed statutory Booker error by applying the guidelines in a mandatory

fashion.

       Statutory Booker error is error that is plain. See United States v. Rodriguez,

398 F.3d 1291, 1298-99, 1306 (11th Cir. 2005), cert. denied, 125 S. Ct. 2935

(2005). Thus, under the third prong of plain error review, Timothy has the burden

to show that the statutory Booker error “affect[ed] substantial rights,” that is, that

the error “affected the outcome of the district court proceedings.” Id. Because

Timothy cannot show that his substantial rights were affected by the district

court’s erroneous application of the guidelines in a mandatory fashion, we affirm

his sentence.2


       2
          The district court sentenced Timothy to a total term of 420 months of imprisonment: (1) 120
months’ imprisonment as to Counts I and III, to be served concurrently; (2) 60 months’
imprisonment as to Count II, to run consecutively to his sentence for Counts I and III; and (3) 240
months’ imprisonment as to Count IV, to run consecutively to his sentence for Count II. The district
court should have sentenced Timothy to 300 months of imprisonment as to Count IV, as required
by statute. The mandatory-minimum statutory penalties compelled by the jury’s verdict account for
the 420-month sentence that was imposed, as: (1) a violation of § 924(c)(1)(A), as charged in Count
II, carries with it a 5-year (i.e., 60 months) mandatory-minimum sentence to be imposed consecutive
to any other sentence, 18 U.S.C. § 924(c)(1)(A); (2) a violation of § 841(b)(1)(B), as charged in
Count III, requires a 5-year (i.e., 60 months) mandatory-minimum sentence, 21 U.S.C.

                                                 9
AFFIRMED IN PART, DISMISSED IN PART.




§ 841(b)(1)(B); and (3) a violation of § 924(c)(1)(C), a charged in Count IV, carries with it a 25-year
(i.e., 300 months) mandatory-minimum sentence to be imposed consecutive to any other sentence,
18 U.S.C. § 924(c)(1)(C). Nevertheless, since the 420-month sentence that the district court gave
Timothy equals the correct mandatory-minimum sentence, Timothy was not prejudiced by this error.


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