                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________                        FILED
                                                                    U.S. COURT OF APPEALS
                                    No. 04-10905                      ELEVENTH CIRCUIT
                                                                          JUNE 17, 2005
                              ________________________
                                                                       THOMAS K. KAHN
                                                                            CLERK
                    D. C. Docket No. 01-00152-CR-ORL-18-DAB

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                            versus

AL VERNON BROWN,

                                                                  Defendant-Appellant.

                              ________________________

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

                                      (June 17, 2005)



Before BLACK and HULL, Circuit Judges, and HODGES*, District Judge.

PER CURIAM:


       *
         Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
      Al Vernon Brown appeals his sentence imposed after pleading guilty to

possession with intent to distribute 500 grams or more of cocaine hydrochloride,

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). He asserts the district

court: (1) erred in determining it could not consider, on remand, his argument that

the prosecutor improperly induced him to plead guilty, and (2) violated his

constitutional rights in sentencing him as a career offender in violation of Blakely

v. Washington, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct.

738 (2005). We hold the district court did not err in determining it could not

consider Brown’s argument that his guilty plea was improperly induced, but

plainly erred in sentencing Brown under a mandatory Guidelines system. We

reverse and remand for resentencing consistent with Booker.

                                I. BACKGROUND

      Brown pled guilty to possession with intent to distribute 500 grams or more

of cocaine hydrochloride. Prior to the sentencing hearing, Brown filed pro se

motions to withdraw his guilty plea and to dismiss his court-appointed counsel,

which the district court denied. During the sentencing hearing, the prosecutor

noted there had been no discussion of the applicability of the career offender

provision during Brown’s plea colloquy. The district court decided not to apply




                                          2
the enhancement because it had not been discussed. As a result, the district court

sentenced Brown to 137 months’ imprisonment.

      Brown appealed his conviction asserting the district court abused its

discretion by denying his motions to withdraw his guilty plea and to dismiss his

court-appointed attorney. The Government cross-appealed Brown’s sentence,

arguing the district court erred by failing to sentence Brown as a career offender.

This Court held the district court did not abuse its discretion in denying Brown’s

motions to withdraw his guilty plea and to dismiss his attorney. In response to

Brown’s argument that the Government had induced him to plead guilty by

agreeing his sentence would be no more than five or six years, we held the record

did not reflect such an agreement—the district court made clear that any numbers

mentioned during the plea colloquy were just estimates and that many factors,

including his criminal history, would be considered in determining his sentence.

We further determined Brown met all the criteria for applying the career offender

enhancement, and concluded the district court’s failure to apply the enhancement

was error because the plain language of the Guidelines required the district court

to sentence Brown as a career offender. Thus, we affirmed Brown’s conviction,

but vacated his sentence and remanded the case with instructions that the district

court resentence Brown as a career offender with an offense level of 34, a criminal

                                          3
history category of VI, and a sentencing range of 262 to 327 months’

imprisonment.

      On remand, Brown moved the district court to reconsider his motion to

withdraw his guilty plea, arguing he was coerced into pleading guilty, and did not

understand the consequences of his guilty plea with respect to the career offender

enhancement. He asserted he was misled by the predictions of his attorney and the

prosecutor as to the sentence he faced. Brown also objected to the career offender

enhancement, arguing the Government failed to sufficiently prove the career

offender enhancement applied.

      The district court concluded, in light of this Court’s mandate, that it had no

authority to grant Brown’s motions, and denied them. During the resentencing

hearing, the district court indicated throughout the hearing that it had no discretion

in applying the career offender provision, and stated: “I did feel the 137 months I

gave you originally was a more appropriate sentence, but based on the instruction

I’ve received from the Eleventh Circuit, it is my obligation to sentence you within

the range of 262 to 327 months, so I’m going to sentence you to 262 months.”




                                          4
                                 II. DISCUSSION

A.    Improper Inducement of Guilty Plea

      Brown asserts prosecutors are required to inform a defendant who is

pleading guilty that he is eligible for sentencing as a career offender and may face

a sentence higher than the defendant’s counsel predicted. He also argues the law

of the case doctrine did not bar the district court from considering the issue, and,

alternatively, the district court could have addressed the issue under the manifest

injustice exception to the doctrine and its inherent supervisory authority over

matters occurring before it.

      “A district court when acting under an appellate court’s mandate, cannot

vary it, or examine it for any other purpose than execution; or give any further

relief; or review it, even for apparent error, upon a matter decided on appeal; or

intermeddle with it, further than to settle so much as has been remanded.” United

States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996) (quotations and citation

omitted). “Our settled circuit law obligates a district court to follow our mandates,

and not to assert jurisdiction over matters outside the scope of a limited mandate,

which constitutes abuse of discretion.” Id. (internal citation omitted).

      In our mandate, this Court specifically instructed the district court to

sentence Brown as a career offender, indicating the applicable offense level,

                                          5
criminal history category, and Guidelines range. The district court was obligated

to address only the issue presented by this Court’s mandate, see id., and it did not

err in determining that it did not have the authority to entertain Brown’s argument

that the prosecutor induced him to plead guilty.

B.    Blakely/Booker

      Brown contends the district court violated his constitutional rights in

sentencing him as a career offender, in violation of the Supreme Court’s holdings

in Blakely and Booker. We review this argument for plain error because Brown

raised it for the first time in his initial brief on appeal. See United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 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. 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. (internal quotations and citation omitted). We have clarified there are two

types of Booker error: (1) Sixth Amendment, or constitutional, error based upon

sentencing enhancements, imposed under a mandatory Guidelines system, neither

admitted by the defendant nor submitted to a jury and proven beyond a reasonable

doubt; and (2) statutory error based upon sentencing under a mandatory



                                            6
Guidelines system. United States v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir.

2005).

       1. Constitutional Error

       A district court does not commit Booker constitutional error by relying on

past convictions to enhance a defendant’s sentence. Shelton, 400 F.3d at 1329.

Because Brown’s career offender enhancement is based on past convictions, there

is no constitutional error.1

       2. Statutory Error

       Brown meets both the first and second prongs of plain-error review for

statutory error because he was sentenced under a mandatory Guidelines system.

See Shelton, 400 F.3d at 1330–31. Under the third prong of plain-error review,

“we ask whether there is a reasonable probability of a different result if the

[G]uidelines had been applied in an advisory instead of binding fashion by the


       1
          Brown argues the career offender enhancement contains factual components not related
to the mere fact of conviction. In supplemental authority, Brown argues that United States v.
Shepard, 125 S. Ct. 1254 (2005), mandates a jury must find the facts underlying his prior
convictions that trigger enhancements. We disagree. Shepard reaffirmed “a court . . . could look
to statutory elements, charging documents, and jury instructions to determine whether an earlier
conviction” qualified as a violent felony. Id. at 1257 (emphasis added). While Shepard limited
the categories of material a court could consider in making a violent felony determination, it did
not take away a judge’s power to pass on this matter of law or even suggest it was appropriate for
jury consideration. See United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005) (“The
Supreme Court’s post-Booker opinion in Shepard v. United States lends further support to the
rule that the sentencing court, not a jury, must determine whether the prior convictions qualify as
violent felonies.”).

                                                7
sentencing judge in this case.” Rodriguez, 398 F.3d at 1301. It is the defendant’s

burden to show he meets this test. Id. at 1299.

      Brown has met the burden of showing there is a reasonable probability of a

different result if the Guidelines had been applied in an advisory fashion. During

the resentencing hearing the district court stated several times it opposed

enhancing Brown’s sentence, but believed it had no discretion in the matter as a

result of this Court’s mandate. The district court specifically stated: “I did feel

the 137 months I gave you originally was a more appropriate sentence, but based

on the instruction I’ve received from the Eleventh Circuit, it is my obligation to

sentence you within the range of 262 to 327 months, so I’m going to sentence you

to 262 months.” The district judge’s comments establish a reasonable probability

the district court would have imposed a more lenient sentence if it had applied the

Guidelines in an advisory fashion. See United States v. Martinez, 407 F.3d 1170,

1174 (11th Cir. 2005).

      Brown also meets the fourth prong of plain-error review. “Because the

district court expressed a clear desire to impose a more lenient sentence and

Booker provides that the district court had the authority to consider the Guidelines

as advisory, the plain error of applying the Guidelines in a mandatory fashion




                                          8
seriously affected the fairness, integrity or public reputation of [Brown’s]

sentencing.” See id.

                               III. CONCLUSION

       The district court did not err in determining it did not have the authority to

entertain Brown’s argument that the prosecutor induced him to plead guilty. The

district court, did, however, plainly err in treating the Guidelines as mandatory.

Thus, we vacate and remand for resentencing in light of Booker. We note the

district court correctly calculated Brown’s Guidelines range of 262 to 327 months’

imprisonment. See United States v. Crawford, 407 F.3d 1174, 1178–79 (11th Cir.

2005) (stating after Booker, district courts must consult the Guidelines and “[t]his

consultation requirement, at a minimum, obliges the district court to calculate

correctly the sentencing range prescribed by the Guidelines”). Thus, on remand,

the district court is required to sentence Brown according to Booker, considering

the Guidelines advisory range of 262 to 327 months’ imprisonment and “other




                                          9
statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).” Booker, 125

S. Ct. at 757.2

       AFFIRMED IN PART, VACATED AND REMANDED IN PART.




       2
        We do not mean to imply that on remand the district court must impose a lesser
sentence. Rather, we merely hold Brown met his burden of showing Booker statutory plain error.
We also will not attempt to decide now whether a particular sentence below the Guidelines range
might be reasonable in this case.

                                              10
