                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________                        FILED
                                                                    U.S. COURT OF APPEALS
                                    No. 04-12072                      ELEVENTH CIRCUIT
                                                                          JUNE 17, 2005
                              ________________________
                                                                       THOMAS K. KAHN
                                                                            CLERK
                           D. C. Docket No. 01-00458-CR-1-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                            versus

OTTO TAYLOR,
a.k.a. Cole,

                                                                  Defendant-Appellant.

                              ________________________

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


                                      (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.
      Otto Taylor appeals his life sentence for conspiracy to possess with intent to

distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846,

841(b)(1)(A)(ii) and (iii). Taylor’s main arguments on appeal are that the district

court: (1) abused its discretion by denying his motion to withdraw his guilty plea;

and (2) violated Blakely v. Washington, 124 S. Ct. 2351 (2004), and United States

v. Booker, 125 S. Ct. 738 (2005), by applying upward adjustments for relevant

conduct, and enhancements for possession of a gun and aggravating role. The

district court did not abuse its discretion in denying Taylor’s motion to withdraw

his guilty plea, but plainly erred under Booker. We vacate and remand for

resentencing.

                                 I. DISCUSSION

A.    Motion to withdraw guilty plea

      Taylor contends the district court should have granted his motion to

withdraw his guilty plea because he did not understand the consequence of his

guilty plea could be life imprisonment. He contends his attorney did not receive

the information upon which the probation officer based the recommendation that

Taylor receive a life sentence. After an evidentiary hearing on Taylor’s motion to

withdraw his guilty plea, the district court concluded the Government had not

misled Taylor regarding the available evidence against him. Alternatively, the

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court stated even if Taylor had been unaware of the Government’s evidence at the

time of entering his plea, he was nevertheless aware of the nature of the charge

and the fact there was evidence supporting the charge. The district court further

noted Taylor acknowledged at the Rule 11 hearing the possibility he might receive

a life sentence. On these grounds, the district court denied the motion.

      We review a district court’s denial of a defendant’s motion to withdraw his

guilty plea for abuse of discretion. United States v. McCarty, 99 F.3d 383, 385

(11th Cir. 1996). A defendant may withdraw his guilty plea after the district court

accepts the plea and before sentencing if “the defendant can show a fair and just

reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In

determining whether the defendant has met his burden, a district court may

consider the totality of circumstances surrounding the plea, including “(1) whether

close assistance of counsel was available; (2) whether the plea was knowing and

voluntary; (3) whether judicial resources would be conserved; and (4) whether the

government would be prejudiced if the defendant were allowed to withdraw [his]

plea.” United States v. Buckles, 843 F.2d 469, 471–72 (11th Cir. 1988) (internal

citations omitted).




                                         3
      The district court did not abuse its discretion by denying Taylor’s motion to

withdraw his guilty plea. At the Rule 11 hearing, the district court clearly advised

Taylor he faced a maximum sentence of life imprisonment, and Taylor purported

to understand that possibility. Taylor further represented his understanding that

his actual sentence could not be predicted, even by his counsel, and that, once

entered, his guilty plea could not be withdrawn. Taylor affirmed his plea was not

the result of promises or threats, and that it was made freely and voluntarily.

Indeed, Taylor does not allege the Rule 11 hearing was improper in any way.

      Taylor was represented by counsel, who also stated during the hearing he

understood the minimum and maximum sentences for Taylor’s offense to be “ten

and life,” respectively, and Taylor affirmed his attorney had advised him of the

Sentencing Guidelines. The record demonstrates Taylor’s plea was knowing and

voluntary. On these bases, we hold the district court did not abuse its discretion in

denying Taylor’s motion to withdraw his guilty plea.




                                          4
B.     Blakely/Booker

       We review Taylor’s Booker argument for plain error because he raised this

argument for the first time in his initial brief on appeal.1 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).

       In this case, there is Booker constitutional error that is plain because the

sentencing court enhanced Taylor’s sentence, under a mandatory Guidelines

system, based on facts that were neither admitted by Taylor nor found by a jury.

See id. at 1298–99. 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 sentencing judge in this


       1
           Although Taylor claims his case should be subject to preserved error review because he
moved to withdraw his plea and proceed to trial before jury, his motion to withdraw was based
on his professed misunderstanding of his possible sentence, not because there were
enhancements imposed under a mandatory Guidelines system that were neither found by a jury
nor admitted by him. To preserve a Booker issue in the district court, the defendant must refer to
the Sixth Amendment, Apprendi, Blakely, Booker, the right to have the jury decide the disputed
fact, raise a challenge to the role of the judge as factfinder with regard to sentencing, or raise
another similar objection. United States v. Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005).
Taylor did not object on any of these or similar grounds, so we review his claim for plain error.

                                                5
case.” Id. at 1301. It is the defendant’s burden to show he meets this test. Id. at

1299.

        Taylor 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. For

example, the district judge stated: “I dislike [the Guidelines] . . . but I refuse to

manipulate them to get to the end result.” The district judge repeatedly said he

would not manipulate the Guidelines, and further stated “I don’t always like the

result that comes up from [the Guidelines].” Reading all the comments together

establishes a reasonable probability the district court would have imposed a more

lenient sentence had it considered the Guidelines to be advisory. See United

States v. Martinez, 407 F.3d 1170, 1174 (11th Cir. 2005).

        Taylor 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

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

sentencing.” See id.




                                           6
                                      II. CONCLUSION

       The district court did not abuse its discretion in denying Taylor’s motion to

withdraw his guilty plea. The district court plainly erred, however, under Booker.2

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

district court correctly calculated Taylor’s Guidelines range. 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 Taylor according to Booker, considering the Guidelines advisory range of




       2
           Taylor also argues the district court erroneously: (1) increased his criminal history score
based upon a prior conviction in violation of his Sixth Amendment rights, and (2) used the
preponderance of the evidence standard to increase his sentence to mandatory life imprisonment.
First, a district court does not commit Booker constitutional error by relying on past convictions
to enhance a defendant’s sentence. United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.
2005). Although this claim constitutes Booker statutory error because the district court plainly
erred in treating the Guidelines as mandatory, this error can be corrected on remand. See id. at
1329–30. Second, as to Taylor’s second argument, he acknowledges acceptance of his view
would require overruling this Court’s precedent. See, e.g., United States v. Florence, 333 F.3d
1290, 1294 (11th Cir. 2003). On remand, the district court should once again use the
preponderance of the evidence standard in sentencing, but should treat the Guidelines as
advisory. See Booker, 125 S. Ct. at 757.

                                                  7
life and “other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp.

2004).” Booker, 125 S. Ct. at 757.3

       AFFIRMED IN PART, VACATED AND REMANDED IN PART.




       3
         We do not mean to imply that on remand the district court must impose a lesser
sentence. Rather, we merely hold Taylor met his burden of showing Booker constitutional plain
error. We also will not attempt to decide now whether a particular sentence below the
Guidelines range might be reasonable in this case.

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