                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           OCTOBER 6, 2005
                             No. 05-10936                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 04-60179-CR-KAM

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                  versus

DEVIN HICKS,
a.k.a. Bread,

                                                         Defendant-Appellant.


                       ________________________

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

                             (October 6, 2005)

Before CARNES, MARCUS and FAY, Circuit Judges.

PER CURIAM:
      Devin Hicks appeals through counsel his 108-month sentence for

distribution and possession with intent to distribute five grams or more of cocaine

base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Hicks argues on appeal that

his sentence at the bottom of his advisory guideline range, which the district court

imposed after considering, at least implicitly, all of the factors enumerated in 18

U.S.C. § 3553(a), was unreasonable, in light of United States v. Booker, 543 U.S.

___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons set forth more fully

below, we affirm Hicks’s sentence.

      Hicks plead guilty, pursuant to a written plea agreement, to the above-

referenced offense. During Hicks’s plea colloquy, he agreed that, as part of an

investigation by the Drug Enforcement Administration’s (“DEA’s”) Mobil

Enforcement Team (“MET Team”) of narcotics trafficking in the northwest area of

Hallandale Beach, Florida, members of the MET Team, acting as undercover

agents, purchased cocaine base from him. Hicks also conceded that these buys,

which occurred on four separate occasions over a two-month period, involved a

total of 57.5 grams of cocaine base.

      Prior to sentencing, a probation officer prepared a presentence investigation

report (“PSI”), recommending that Hicks’s base offense level be set at 32, pursuant

to U.S.S.G. § 2D1.1(c)(4) (setting offense level applicable for offenses involving at



                                           2
least 50 grams, but less than 150 grams, of cocaine base). The probation officer

also recommended a three-level reduction, pursuant to U.S.S.G. § 3E1.1, for

acceptance of responsibility. With an adjusted offense level of 29, and a criminal

history category of III, Hicks’s resulting guideline range was 108 to 135 months’

imprisonment. In making these calculations, the probation officer explained that

no role adjustment was warranted, pursuant to U.S.S.G. § 3B1.2, because,

“[a]lthough Hicks was the primary negotiator and in charge of setting the purchase

price of the crack cocaine, he [did] not appear to have been in a leadership role,

which would warrant an aggravating role enhancement.” In addition, the probation

officer noted that the district court might decide to depart upward, pursuant to

U.S.S.G. § 4A1.3, because Hicks’s criminal history category of III did not

adequately reflect his extensive juvenile criminal history.1

       Hicks filed objections to the PSI, arguing that a § 3B1.2(b) minor-role

adjustment was warranted because (1) he “was at the bottom of the [drug

distribution] chain as a street[-]level seller”; (2) his “localized” offense conduct

was not sophisticated or complex; and (3) he was not a leader, manager, or



       1
         The PSI reflects that Hicks’s juvenile history, which began at age 11, included the state
offenses of (1) possession with intent to sell cocaine base, (2) burglary, (3) theft, (4) battery, (5)
grand theft auto, (6) possession of cannabis, and (7) resisting without violence. Moreover, Hicks
committed the instant offense while he was on probation for the state offenses of (1) carrying a
concealed firearm, (2) resisting without violence, and (3) discharging a firearm at a school.

                                                  3
organizer. Hicks also argued that, due to the fact that he only was age 18 when he

committed the instant offense, the court should depart downward based on his

“extreme vulnerability in prison.”

      Alternatively, Hicks contended that, in light of Booker, the court should

apply the factors enumerated in § 3553(a) to the mitigating facts in his case and

conclude that his mandatory minimum statutory sentence of 5 years’

imprisonment, instead of his guideline range of 108 to 135 months’ imprisonment,

was reasonable and sufficient. In support of this last argument, Hicks contended

that (1) the offense involved simple and unsophisticated drug sales; (2) his

guideline range was “artificially inflated” because he was not arrested until after an

undercover agent made multiple drug purchases from Hicks; (3) despite Hicks’s

“troubled history,” he was intelligent and had family support; and (4) a reduced

sentence would provide him with the “needed educational or vocational training,

medical care, or other correctional treatment in the most effective manner.”

      On February 4, 2005, at sentencing, Hicks renewed his § 3B1.2(b) objection

and motion for a downward departure based on his “extreme vulnerability.” Hicks

also reargued that the court should impose his mandatory minimum statutory

sentence, instead of sentencing him within his advisory guideline range. In

addition to reasserting the reasons outlined in his objections to the PSI, Hicks



                                           4
asserted in support of this last argument that (1) he had never been in prison;

(2) the drug sales at issue had not involved large sums of money, weapons, threats,

or injuries; (3) his pre-sentence incarceration had “opened his eyes” to “the reality

of the crime”; (4) his mandatory minimum statutory sentence would reflect

adequately the seriousness of the offense; and (5) educational or vocational

treatment would have the most impact at his age.2

       The government responded that a sentence below Hicks’s guideline range

was not warranted because (1) Hicks had been dealing drugs since he was age 11;

(2) Hicks had dropped out of high school in the ninth grade; (3) Hicks had an

extensive criminal history as a juvenile; (4) out of the 30 MET cases the prosecutor

personally had handled, Hicks had sold the highest quantity of drugs, and for the

largest sums of cash; and (5) Hicks’s minimum mandatory statutory sentence

would not promote respect for the law because Hicks had failed to take advantage

of previously granted leniency and had repeatedly committed crimes and violated

his probation. Hicks replied that, although he was not disputing either the facts, or



       2
          Hicks also produced as mitigating evidence a letter from his parents, in which they
stated that (1) their neighborhood gave “the false perception that those who break the laws
appear to prosper far greater than those [] who work hard to make ends meet”; (2) Hicks was a
“child playing in a very grown man’s game”; (3) Hicks appeared to act, at least in part, out of his
desire to provide for his new child; (4) Hicks was “heavily addicted” to marijuana when he
committed the instant offense conduct; (5) he had intended to enter a “boot camp”; and (6) he
was remorseful.


                                                 5
his criminal history, the court should not base his sentence primarily on

misconduct that he had committed during his youth.

      At the conclusion of the parties’ arguments, the district court denied Hicks’s

request for a minor-role adjustment, finding that Hicks, if anything, was more

culpable than the only other identifiable member of the drug-trafficking operation.

The court similarly denied Hicks’s motion for a downward departure based on

“extreme vulnerability,” explaining:

      [T]here is nothing in this record [that] distinguishes Mr. Hicks, as a
      19-, soon to be 20-year-old, from any other person of similar age or
      characteristics. He is not physically or mentally deficient or
      vulnerable in any way that would, in my mind, justify him [being
      treated] differently [sic] than any other person of a similar age. And,
      if I were to grant him a downward departure on that basis alone, his
      age, I don’t know how I could distinguish him from any other 20-
      year-old who comes before me. And I believe I need more evidence
      in the record to justify vulnerability than his mere age. So I am going
      to deny that request.

The court, thus, adopted the PSI’s findings and calculated Hicks’s advisory

guideline range as 108 to 135 months’ imprisonment. After giving Hicks the

opportunity to allocute, the court also denied the government’s request for an

upward departure.

      The court then sentenced Hicks to 108 months’ imprisonment, 4 years’

supervised release, and a $100 special assessment fee. In doing so, the court

offered the following explanation:

                                          6
      Now, I just want to make clear . . . that simply imposing a sentence
      does not mean that the individual has no worth. The guidelines are
      intended to give guidance to district judges as to what may be an
      appropriate sentence under the circumstances in order to attempt to
      assure, insure, that similar people who are convicted of similar crimes
      with similar backgrounds under similar facts are treated similarly
      throughout the country . . . [and not] just because of the culture or
      nature or the manner in which the courts in the legal system operate,
      just because of the peculiarities or preferences of an individual judge.
      They’re intended to try and treat people equally.

      So, again, that doesn’t mean that we’re bound by the guidelines. And
      that’s what the Booker [C]ourt made clear: that they’re advisory only,
      but certainly they need to be considered seriously and, in my
      judgment, should not be ignored without significant justification, and,
      taking everything into consideration in this case, I believe that a
      guideline sentence is appropriate.

      So, after a consideration of the statements of all the parties and a
      review of the [PSI], the [c]ourt shall impose a sentence within the
      guideline range. The [c]ourt finds, however, that a sentence at the low
      end of the guideline range is sufficient to deter future criminal
      conduct. Furthermore, it is the finding of the [c]ourt that [Hicks] is
      not able to pay a fine. Accordingly, no fine shall be imposed.

Hicks raised no objections to the court’s pronouncement of, and explanation of, his

sentence, other than reasserting his previous objections.

      Hicks argues on appeal that the district court erred in imposing his sentence

because it misunderstood the “the proper range of its discretion” in imposing a

post-Booker sentence. Hicks asserts in support that the court (1) violated

Fed.R.Crim.P. 32(i)(3)(b) by leaving unresolved controverted matter,

(2) erroneously determined that it could not sentence him outside of his guideline

                                          7
range “without significant justification,” and (3) failed to explain or articulate its

findings as to § 3353(a)’s sentencing factors. Hicks concludes that, because of

these legal errors, he received an unreasonable sentence.3

       As a preliminary matter, to the extent Hicks is arguing that the court violated

Rule 32(i)(3)(B), by leaving unresolved disputed issues, this rule provides:

       At sentencing, the court must—for any disputed portion of the
       presentence report or other converted matter—rule on the dispute or
       determine that a ruling is unnecessary either because the matter will
       not affect sentencing, or because the court will not consider the matter
       in sentencing.

Fed.R.Crim.P. 32(i)(3)(B). In interpreting a former, but similar, version of Rule

32,4 we determined that “[t]o demonstrate a technical transgression of [former Rule

32], all that is necessary is that an allegation of a specific factual error in the [PSI]

       3
          Hicks has waived by not arguing on appeal that the court erred in calculating his
advisory guideline range and in not departing based on his “extreme vulnerability.” See United
States v. Levy, 416 F.3d 1273, 1275 (11th Cir. 2005) (holding that an argument not raised in an
appellant’s opening brief is deemed waived). Moreover, we recently determined in United
States v. Winingear, No. 05-11198 (11th Cir. Aug. 30, 2005), that, post-Booker, we still have no
jurisdiction to review a decision of a district court not to depart downward, so long as the district
court did not incorrectly believe that it lacked the authority to apply a departure. See id.,
manuscript op. at 7-9.
       4
           This former version of Rule 32 provided:

       If the comments of the defendant and the defendant’s counsel or testimony or
       other information by them allege any factual inaccuracy in the [PSI] or the
       summary of the report or part thereof, the court shall, as to each matter
       controverted, make (i) a finding as to the allegation, or (ii) a determination that no
       such finding is necessary because the matter controverted will not be taken into
       account in sentencing.

See Fed.R.Crim.P. 32(c)(3)(D) (1992).

                                                  8
was before the [] court and that the [] judge did not make either of the alternative

findings.” United States v. Boatner, 966 F.2d 1575, 1581 (11th Cir. 1992).

      We, however, have clarified that, at least with respect to the former version

of Rule 32, the rule is applicable only to objections to a probation officer’s factual

findings, instead of his or her legal opinions or conclusions. See United States v.

Vincent, 121 F.3d 1451, 1453 (11th Cir. 1997). In Vincent, we determined that the

defendant, in challenging the legal conclusion that a sentence enhancement was

applicable, had failed to demonstrate that his PSI contained a controverted factual

allegation. See id. Similarly, in arguing a Rule 32(i)(3)(B) violation, Hicks has

failed to identify unresolved factual allegations. Indeed, at sentencing, Hicks

conceded that he was not disputing either the facts in his PSI, or its calculation of

his criminal history. Moreover, as discussed below, the record, at least implicitly,

shows that the court considered all of § 3553(a)’s sentencing factors and the

mitigating facts Hicks offered as they related to these factors. Thus, Hicks

argument as it relates to Rule 32(i)(3)(B) is without merit.

      To the extent Hicks also is contesting what standard of review is applicable

on review, and whether the district court properly relied on his guideline range, the

Supreme Court, prior to Hicks’s sentencing hearing, issued its decision in Booker,

holding that the mandatory nature of the federal guidelines rendered them



                                           9
incompatible with the Sixth Amendment’s guarantee to the right to a jury trial.

Booker, 543 U.S. at ___,125 S.Ct. at 749-51.5 In a second and separate majority

opinion, the Booker Court explained that, to best preserve Congress’s intent in

enacting the Sentencing Reform Act of 1984, the appropriate remedy was to

“excise” two specific sections—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

Sentencing Guidelines advisory only. Id. at ___, 125 S.Ct. at 764. Thus, the

Booker Court concluded that a defendant’s guideline range is now advisory; it no

longer dictates the final sentencing result but, instead, is an important sentencing

factor that the sentencing court is to consider, along with the factors contained in

18 U.S.C. § 3553(a).6 Id. at ___, 125 S.Ct. at 764-65. Moreover, the Booker Court

       5
          The Supreme Court in Booker explicitly reaffirmed its rationale 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 guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” See Booker, 543 U.S. at ___, 125 S.Ct. at 756.
       6
          The relevant sentencing factors enumerated in § 3553(a) include: “(1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need for
the sentence imposed–(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the
defendant with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of
sentence and the sentencing range established for . . . (A) the applicable category of offense

                                                10
concluded that courts of appeals now must review sentences for unreasonableness.

Id. at ___, 125 S.Ct. at 767.

       In applying Booker, we have determined that a district court’s interpretation

of the federal guidelines still is subject to de novo review, while its factual findings

must be accepted unless clearly erroneous. United States v. Jordi, 418 F.3d 1212,

1214 (11th Cir. 2005); see also United States v. Crawford, 407 F.3d 1174, 1178

(11th Cir. 2005) (“[n]othing in Booker suggests that a reasonableness standard

should govern review of the interpretation and application as advisory of the

[g]uidelines by a district court”). However, after a court has calculated a

defendant’s guideline range, it “may impose a more severe or more lenient

sentence,” which we review only for reasonableness. Crawford, 407 F.3d at 1179.

Moreover, although the federal guidelines now are only advisory, courts “remain[]

obliged to ‘consult’ and ‘take into account’ the [g]uidelines in sentencing,” and the

guidelines “remain an essential consideration in the imposition of federal

sentences, albeit along with the factors in § 3553(a).” Id. at 1178.

       Applying this analysis to the instant case, the district court properly noted

that, although it was required to consider Hicks’s guideline range of 108 to 135


committed by the applicable category of defendant as set forth in the guidelines . . .; (5) any
pertinent policy statement []; (6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct; and (7) the need
to provide restitution to any victims of the offense.” See 18 U.S.C. § 3553(a)(1)-(7).

                                              11
months’ imprisonment, and although it did not believe that a defendant’s guideline

range should be ignored “without significant justification,” it understood that it

was not bound by this range. In explaining that it had found that Hicks, if

anything, was more culpable than his codefendant, and that Hicks’s age, alone, was

not sufficient to conclude that he would be more vulnerable than other defendants

if he was sentenced to a lengthy prison sentence, the court demonstrated that it had

considered “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” See 18

U.S.C. § 3553(a)(6). Moreover, in discussing that a sentence of 108 months’

imprisonment would be sufficient to deter future criminal conduct, and that Hicks

was unable to pay a fine, the court showed that it had considered the need for a

sentence “to afford adequate deterrence to criminal conduct,” see 18 U.S.C.

§ 3553(a)(2)(B); and the kinds of sentences available, see 18 U.S.C. § 3553(a)(3).

      Additionally, in explaining that it had considered the arguments of the

parties and the contents of Hicks’s PSI, the court, at least implicitly, demonstrated

that it had considered, along with Hicks’s guideline range, the other sentencing

factors in § 3553(a). Indeed, applying these other factors, although Hicks argued

that (1) he was “at the bottom of [drug distribution] chain,” (2) the offense involve

“simple and unsophisticated drug sales,” and (3) his conduct was “localized,”



                                          12
Hicks conceded that the offense conduct involved four separate drug sales, during

which he sold a total of 57.5 grams of cocaine base. See 18 U.S.C. § 3553(a)(1)

(“the nature and circumstances of the offense”).

      Hicks’s PSI also reflects that, although he only was age 18 when he

committed the instant offense, he had a lengthy juvenile criminal history and he

had not taken advantage of past opportunities to rehabilitate himself. See 18

U.S.C. § 3553(a)(1) (“the history and characteristics of the defendant”); 18 U.S.C.

§ 3553(a)(2)(D) (“the need for the sentence imposed to provide the defendant with

needed [treatment]”). Thus, Hicks has failed to show that the court did not

consider § 3553(a)’s sentencing factors, or that his 108-month sentence, which was

at the low end of his guideline range and was less than half of his statutory

maximum sentence, was unreasonable. See 21 U.S.C. § 841(b)(1)(B) (setting

maximum statutory sentence for offenses involving five grams or more of cocaine

base as 40 years); see also Winingear, No. 05-11198, manuscript op. at 9-11

(concluding that a determination of how much deference is owed a sentence within

a defendant’s advisory guideline range was unnecessary because the defendant’s

two-year sentence—which was one-tenth of his statutory maximum sentence, was

the result of his defrauding 21 people of a total of $19,600, was committed after

previous convictions and while the defendant still was serving a sentence for



                                          13
another offense, and followed the defendant’s violating his bond and threatening to

murder the arresting officers as he fled from them—clearly was reasonable).

       Finally, to the extent Hicks is challenging the court’s failure to explicitly

discuss during his sentencing hearing each of the factors enumerated in § 3553(a),

he failed to raise this claim in the district court. Indeed, when the court asked

Hicks whether he had any objections to the court’s pronouncement of sentence,

Hicks replied that he had none, other than reasserting his previous objections.

Thus, our review only is for plain error. See United States v. Rodriguez, 398 F.3d

1291, 1297-98 (11th Cir.) (reviewing a newly raised Booker challenge for plain

error), cert. denied, 125 S.Ct. 2935 (2005). “An appellate court 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.’” Id. (quotation 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. (quotation omitted).

       An error cannot meet the “plain” requirement of the plain error rule if it is

not “clear under current law.” United States v. Aguillard, 217 F.3d 1319, 1321

(11th Cir. 2000) (quotation omitted). “[W]here neither the Supreme Court nor this

Court has ever resolved an issue, and other circuits are split on it, there can be no



                                            14
plain error in regard to that issue.” Id.; see also United States v. Gerrow, 232 F.3d

831, 835 (11th Cir. 2000) (concluding that the Court need not determine under

plain-error review, in the absence of precedent from the Supreme Court or this

Court, whether 18 U.S.C. § 3583(b)((2) provided the maximum term of supervised

release for a defendant sentenced under 21 U.S.C. § 841(b)(1)(C)). Because Hicks

has failed to show that either the Supreme Court or this Court had determined post-

Booker to what extent courts are required to explain sentences, any error was not

“plain.” See Aguillard, 217 F.3d at 1321.7

       Accordingly, we conclude that the district court (1) properly considered both

Hicks’s advisory guideline range and the other sentencing factors enumerated in

§ 3553(a), and (2) did not plainly err in pronouncing Hicks’s sentence. We,

therefore, affirm Hicks’s 108-month sentence.

       AFFIRMED.

       7
          In concluding in United States v. Robles, 408 F.3d 1324 (11th Cir. 2005), that a district
court’s sentencing of a defendant under a mandatory-guidelines system was harmless error, we
commented, albeit as dicta, as follows:

       Even if Robles was sentenced post-Booker and we were reviewing for
       reasonableness, we would not expect the district court in every case to conduct an
       accounting of every § 3553(a) factor. . . and expound upon how each factor
       played a role in its sentencing decision. Certainly, the more insight a district
       court can provide us with, the better it will be for appellate review, especially
       when the court sentences outside of the guidelines; however, when a district court
       sentences within the guidelines, we could not expect a court to do more than was
       done in this case.

See Robles, 408 F.3d at 1328.

                                                15
