                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                    FOR THE ELEVENTH CIRCUIT
                                             U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                           August 16, 2005
                            No. 04-12665                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                 D.C. Docket No. 03-00019-CR-2-JTC-3

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

JASON EDWARD STEVENS,

                                                     Defendant-Appellant.

                     __________________________

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

                            (August 16, 2005)

                  ON REMAND FROM THE
            SUPREME COURT OF THE UNITED STATES

Before ANDERSON, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      This case is before the Court for consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005). We previously affirmed Stevens’ sentence. See

United States v. Stevens, Case No. 04-12665 (11th Cir. Dec. 29, 2004)

(unpublished). The Supreme Court vacated our prior decision and remanded the

case to us for further consideration in light of Booker.

      In his initial brief on direct appeal, Stevens asserted: (1) the district court

erred when it found he possessed a firearm during the robbery and enhanced his

sentence accordingly, and (2) in light of Blakely v. Washington, 124 S. Ct. 2531

(2004), his sentence should not have been enhanced based on facts found by the

sentencing judge. On reconsideration, we reinstate our opinion as to the

possession of firearm enhancement and consider the Booker claim only.

      Because Stevens did not raise a Blakely or Booker objection in the district

court, his Booker claim should be reviewed under the plain-error standard. 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 the judicial proceedings.




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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

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

2005).

      Stevens meets the first two prongs of the plain-error test for Sixth

Amendment error because his sentence was enhanced, under a mandatory

Guidelines system, based on facts neither admitted by him or found by a jury.

Rodriguez, 398 F.3d at 1298–99. However, Stevens cannot meet the third prong

of the plain-error test. There is not “a reasonable probability of a different result if

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

sentencing judge in this case.” See id. at 1301. Although the district court

sentenced Stevens at the low end of his Guidelines range, that is not enough to

show the district court would have imposed a different sentence under an advisory

regime. See United States v. Fields, 408 F.3d 1356, 1361 (11th Cir. 2005). There

is nothing in the record indicating the district court would have imposed a

different sentence if the Guidelines would have been treated as advisory. Thus,

                                           3
the district court did not commit Booker constitutional plain error, by enhancing

Stevens’ sentence based on facts neither admitted by him nor found by a jury.

      Stevens also meets the first two prongs of the plain error test for statutory

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

Shelton, 400 F.3d at 1330–31. However, again, Stevens cannot meet the third

prong because there is not “a reasonable probability of a different result if the

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

sentencing judge in this case.” See id. at 1332 (quoting Rodriguez, 398 F.3d at

1301). Thus, the district court did not commit Booker statutory plain error by

sentencing Stevens under a mandatory Guidelines regime. We affirm Stevens’

sentence.

      OPINION REINSTATED IN PART; AFFIRMED IN PART.




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