                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                               U.S.
                       ________________________ ELEVENTH CIRCUIT
                                                              May 4, 2005
                              No. 04-13911                 THOMAS K. KAHN
                                                               CLERK
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 03-00132-CR-3-RV

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

     versus

PHILLIP ELLIOTT,

                                                       Defendant-Appellant.


                       __________________________

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

                                (May 4, 2005)

Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Phillip Elliott directly appeals his 78-month sentences for two counts of

transporting a minor in interstate commerce with the intent to engage in sexual

activity, in violation of 18 U.S.C. § 2423(a). Elliott argues on appeal that the

district court violated his Sixth Amendment right to a jury trial in applying the

federal guidelines in sentencing him, in light of Blakely v. Washington, 542 U.S.

___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and 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 Elliott’s sentences.

      A federal grand jury returned a four-count superseding indictment against

Elliott, charging him with committing the above-referenced offenses by

transporting a person under the age of 18 in interstate commerce from Florida to

Louisiana and Texas, with the intent of engaging in sexual activity, on or about

June 6, 2003, and June 28, 2003, respectively (“Counts 1 and 2”). This

superseding indictment also charged Elliott with using a person under the age of

18 to engage in sexually explicit conduct for the purpose of producing visual

depictions, in violation of 18 U.S.C. § 2251(a) and (d) (“Count 3”); and with

possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4) and (b)(2)

(“Count 4”). This indictment, however, did not allege the exact age of the

juvenile, or that the offenses in Counts 1 and 2 involved causing a minor to engage

                                          2
in sexually explicit conduct for the purpose of producing a visual depiction of

such conduct.

      In lieu of trial, Elliott orally agreed to plead guilty to Counts 1 and 2 of his

superseding indictment, in exchange for the government agreeing to dismiss

Counts 3 and 4 at the time of sentencing. During Elliott’s change-of-plea hearing,

the government proffered that, had the case proceeded to trial, it would have

proven, among other facts, that, on June 6 and June 28, 2003, Elliott took a

juvenile, who was 15 years’ old, from Florida to Louisiana and Texas, to engage in

sex. Other than objecting to statements that the sexual conduct occurred before

the trips at issue—conduct that was the basis for pending state charges—Elliott

agreed with the government’s factual proffer.

      Prior to sentencing, a probation officer prepared a presentence investigation

report (“PSI”), setting out a detailed statement of facts on Elliott’s acts of

transporting the juvenile across interstate lines and engaging in sexual activities

with her in Florida, Louisiana, and Texas. These facts included, among other

things, that (1) the victim told law enforcement officers in Florida that Elliott took

photographs of her in the nude; (2) officers found photographs of the victim in the

nude with her genitals exposed and with leather straps laying across her body in

Elliott’s personal computer; and (3) law enforcement officers in Texas also

                                           3
discovered computer discs containing pornography and the above-described

photographs of the victim.

       The probation officer recommended in the PSI that Elliott’s offenses be

grouped together, pursuant to U.S.S.G. § 3D1.2(b), and that his combined base

offense level be set at 19, pursuant to U.S.S.G. § 2G1.1(a)(1) (guideline for

§ 2423(a) offenses involving a person under the age of 18), because the victim was

14 years’ old. The PSI also recommended a two-level upward adjustment,

pursuant to U.S.S.G. § 2G1.1(b)(2), because the offense involved a victim who

had attained the age of 12 years, but had not yet attained the age of 16 years,

resulting in an adjusted offense level of 21. Despite these calculations, however,

the PSI determined that the provisions in U.S.S.G. § 2G2.1 were applicable

because, under the cross reference in U.S.S.G. § 2G1.1(c)(1), the offenses of

conviction involved causing, transporting, permitting, or offering or seeking by

notice or advertisement, a minor to engage in sexually explicit conduct for the

purpose of producing a visual depiction of such conduct.1 Pursuant to U.S.S.G.




       1
          In support of this cross reference, the probation officer cited to the fact that one of the
discs that law enforcement officers seized in Texas contained nude photographs of the victim
engaging in sexually explicit conduct. The officer also explained that (1) these photographs were
taken both in New Orleans, Louisiana, and at Elliott’s residence in Pensacola, Florida; and
(2) two cameras and discs containing photographs were recovered from the Texas motel room in
which Elliott was found with the juvenile and arrested.

                                                 4
§ 2G2.1(a) & (b)(1), Elliott had a base offense level of 27, which was adjusted

upwards two levels because the victim was under the age of 16.

       After the PSI applied a two-level downward adjustment for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(a), Elliott’s adjusted offense level was

27. Moreover, with a criminal history category of I, Elliott’s resulting guideline

range was 70 to 87 months’ imprisonment. Elliott’s only objection to his PSI that

affected the calculation of his guideline range involved the recommendation that

he only receive a two-level, instead of a three-level § 3E1.1 adjustment for

acceptance of responsibility.

       On June 9, 2004, at sentencing, Elliott again only objected to the PSI’s

failure to recommend a three-level § 3E1.1 downward adjustment. The district

court sustained this objection, thereby adjusting downward Elliot’s total offense

level to 26 and his resulting guideline range to 63 to 78 months’ imprisonment.2

After stating that he had no objections to the court’s calculation of his guideline

range, Elliot’s counsel argued for a lenient sentence under the guidelines, based on

the facts that (1) Elliott previously had lead a “law-abiding life,” (2) his conduct in



       2
         Although the court initially stated that Elliott’s guideline range was 63 to 70 months’
imprisonment, it later showed that it understood that the actual range was 63 to 78 months’
imprisonment by stating that it was sentencing Elliott to his maximum guideline sentence of 78
months’ imprisonment.

                                                5
the instant offense was “out of character,” and (3) he was remorseful. He also

requested that the court waive any fines if it imposed restitution.

       The court, without objection, ultimately sentenced Elliott to concurrent

sentences of 78 months’ imprisonment, 5 years’ supervised release, a $1,500 fine,

and 1, 302.59 in restitution. In imposing this maximum guideline sentence, the

court cited to the serious nature of the offenses and to aggravating factors,

including the fact that Elliott’s last trip to Texas was made in direct violation of a

court order. The court also explained that it had considered all of the sentencing

factors set out in 18 U.S.C. § 3553(a), and that it had found that the sentence

satisfied these factors.

       In an appeal brief Elliott filed before the Supreme Court issued its decision

in Booker, he argues that the district court plainly erred in sentencing him

pursuant to the federal guidelines because they are unconstitutional. Elliott

acknowledges a prior decision by this Court that unpreserved Blakely error could

not be plain.3 Nevertheless, Elliott generally contends that (1) this prior decision

was incorrectly decided, (2) he should not be deemed to have “forfeited” his


       3
          We concluded in United States v. Duncan, 381 F.3d 1070, 1075-77 (11th Cir. 2004),
opinion vacated and superseded on rehearing by United States v. Duncan, 400 F.3d 1297 (11th
Cir. 2005) (mandate withheld), that, because neither the Supreme Court nor this Court had
resolved the issue whether Blakely applied to the federal guidelines, the defendant could not
show that any error in sentencing the defendant under the federal guidelines was plain.

                                               6
constitutional rights; and (3) plain error occurred because he would have received

a lesser sentence if the court had not been “bound by the guidelines.” Without

explanation, Elliott also asserts that the court’s use of the guidelines prejudiced

him because the victim was a willing participant in the offenses of conviction.

       Because Elliott failed to raise his Blakely/Booker claim in the district court,

we review it only for plain error. See United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir.) (applying plain-error review to a newly-raised Blakely claim),

petition for cert. filed, No. 04-1148 (Feb. 23, 2005); see also United States v.

Dowling, No. 04-10464, manuscript op. at 4 (11th Cir. Mar. 23, 2005) (concluding

that a defendant either must (1) refer to the Sixth Amendment, Apprendi, or other

related cases; (2) assert his right to have the jury decide the disputed fact; or

(3) raise a challenge to the role of the judge as factfinder to preserve a

Blakely/Booker claim) (mandate withheld).4 Under plain error review, an

appellate court may not correct an error that the defendant failed to raise in the

district court unless there is “‘(1) error, (2) that is plain, and (3) that affects

substantial rights.’” Rodriguez, 398 F.3d at 1298 (quoting United States v. Cotton,


       4
         Justice Breyer also explicitly noted in Booker that, despite that the Supreme Court’s
holding was applicable to all cases on direct review, the Court did not “believe that every appeal
[would] lead to a new sentencing hearing,” and that it “expect[ed] reviewing courts to apply
ordinary prudential doctrines, determining, for example, whether the issue was raised below and
whether it fails the ‘plain error’ test.” See Booker, 543 U.S. at ___, 125 S.Ct. at 769.

                                                 7
535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002)). “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.

      The Supreme Court determined in Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Id., 530 U.S. at 490, 120 S.Ct. at 2362-63. After the district court sentenced

Elliott, the Supreme Court concluded in Blakely that the imposition—based solely

on the sentencing judge’s factual findings—of a sentencing enhancement above

the 53-month standard range indicated in the State of Washington’s Sentencing

Reform Act violated the defendant’s Sixth Amendment rights because the facts

supporting the findings neither were admitted by the defendant, nor found by a

jury. Blakely, 542 U.S. at ___, 124 S.Ct. at 2534-38. The Blakely Court,

however, expressly stated that “[t]he Federal Guidelines are not before us, and we

express no opinion on them.” Id., 542 U.S. at ___, 124 S.Ct. at 2538 n.9.

      The Supreme Court in Booker recently determined that “no distinction of

constitutional significance [existed] between the Federal Sentencing Guidelines

                                            8
and the Washington procedures at issue [in Blakely].” Booker, 543 U.S. at ___,

125 S.Ct. at 749. The Court, thus, concluded that the mandatory nature of the

guidelines rendered them incompatible with the Sixth Amendment’s guarantee to

the right to a jury trial. Id., 543 U.S. at ___, 125 S.Ct. at 749-51. The Court also

reaffirmed its rationale in Apprendi 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.” Id., 543 U.S. at ___,

125 S.Ct. at 756.

      In Rodriguez, we reviewed a similar appeal in which the appellant had

failed to preserve a Blakely/Booker objection, and the Supreme Court had decided

Booker while the appellant’s appeal was pending. Rodriguez, 398 F.3d at 1297-

98. Applying plain-error review, we determined that the appellant had satisfied

the first element of plain error by showing error because, under a mandatory

guideline system, the appellant’s sentence had been enhanced based on judicially

determined factual findings that went beyond the facts admitted by the defendant

or found by the jury. Id. at 1300. We also concluded that the second element of

plain-error review had been met because, although the Blakely/Booker error had

not been “plain” when the court had sentenced the appellant, “where the law at the

                                          9
time of trial was settled and clearly contrary to the law at the time of appeal—it is

enough that the error be ‘plain’ at the time of appellate consideration.” Id. at 1299

(quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 1549, 137

L.Ed.2d 718 (1997)); see also Booker, 543 U.S. at ___, 125 S.Ct. at 769 (directing

that the decision was applicable to all cases on direct appeal).

       We, however, concluded that no plain error had occurred in Rodriguez

because, under the third element of plain error, the appellant had failed to show

that the Booker error had “affect[ed] substantial rights,” that is, that the error

“must have affected the outcome of the district court proceedings.” Rodriguez,

398 F.3d at 1299-1301 (quotation omitted). We discussed that the test for

showing that the error “affected the outcome of the district court proceedings” was

the formulation of a reasonable probability of a different result, which means a

probability “sufficient to undermine confidence in the outcome.” Id. at 1299

(quotation omitted). We also reiterated that, under this third element, “[i]t is the

defendant rather than the [g]overnment who bears the burden of persuasion with

respect to prejudice.” Id. (quotation omitted).5 Because we determined that the


       5
          We explained in further detail in Rodriguez that “pre-Booker defendants must establish
a reasonable probability that if the district court had considered the guidelines range it arrived at
using extra-verdict enhancements as merely advisory, instead of mandatory, and had taken into
account any otherwise unconsidered [18 U.S.C. § 3553(a)] factors, the court would have imposed
a lesser sentence than it did.” See Rodriguez, 398 F.3d at 1302.

                                                 10
record in Rodriguez “provide[d] no reason to believe any result [was] more likely

than not,” we concluded that the appellant had not met his burden on the third

element of plain-error review. Id. at 1301. Moreover, we concluded that we

“ha[d] no occasion to decide how [the appellant] would have fared under the

fourth [element].” Id.

      In the instant appeal, to the extent the court adjusted Elliott’s guideline

sentence upwards two levels, pursuant to § 2G1.1(b)(2), because the offense

involved a victim who had attained the age of 12, but had not yet attained the age

of 16, Elliott admitted during his change-of-plea hearing that the victim was 15

years’ old. Thus, Elliott did not show that this adjustment constituted a Sixth

Amendment violation under Booker. See United States v. Shelton, 400 F.3d 1325,

1329-30 (11th Cir. 2005) (concluding that district court did not commit a Sixth

Amendment violation under Booker by relying on facts admitted by the

defendant).

      On the other hand, by adjusting Elliott’s guideline range under the

provisions in § 2G2.1, the court relied on facts not admitted by Elliott, that is, that

(1) one of the computer discs that law enforcement officers seized in Texas

contained nude photographs of the victim engaging in sexually-explicit conduct;

(2) these photographs were taken both in New Orleans, Louisiana, and at Elliott’s

                                          11
residence in Pensacola, Florida; and (3) two cameras and discs containing

photographs were recovered from the Texas motel room in which Elliott was

found with the juvenile and arrested. Moreover, the court was operating under a

mandatory guidelines system. Booker error, therefore, occurred, and it is now

“plain.” See Rodriguez, 398 F.3d at 1299.

       However, similar to the facts in Rodriguez, Elliott has not explained, much

less proven under the third element of plain-error review, how his substantial

rights were affected by this Booker error. Indeed, district courts still must

consider defendants’ applicable guideline ranges. See Booker, 543 U.S. at ___,

125 S.Ct. at 764 (“Without the ‘mandatory’ provision, the [Sentencing Reform

Act] nonetheless requires judges to take account of the Guidelines together with

other sentencing goals”).6 The PSI contained an extensive summary of the facts

underlying the offenses of conviction, and the court explicitly stated that it had


       6
          These other relevant “sentencing goals” 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 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).

                                                12
considered the nature and circumstances of the offense. See 18 U.S.C.

§ 3553(a)(1). Indeed, in imposing a sentence at the high end of Elliott’s guideline

range, the court cited to the serious nature of the offenses and to aggravating

factors, including that Elliott’s last trip to Texas was made in direct violation of a

court order. The court’s imposition of this sentence also demonstrated that it

considered the need for the sentence imposed, and that it would not have imposed

a sentence below Elliott’s guideline range, but for the then mandatory nature of the

guidelines. See 18 U.S.S.C. § 3553(a)(2)-(4); see also United States v. Curtis, 400

F.3d 1334, 1336 (11th Cir. 2005) (noting that the imposition of the maximum term

of imprisonment permitted by the relevant guideline range was “inconsistent with

any suggestion that the sentencing judge would have imposed a lesser sentence if

the judge had realized the [federal guidelines] were advisory”).

      Nevertheless, even in the absence of these determinations, the likelihood of

a different result would be speculative without a clear statement or sign from the

court that, but for the fact that its discretion was constrained under the federal

guidelines, it would have imposed a lighter sentence. See Dowling, No. 04-10464,

manuscript op. at 5 (concluding that no plain error occurred because the defendant

could not point to anything in the record indicating a different result if the




                                          13
guidelines had been applied in an advisory instead of binding fashion).7 Similar to

the defendant in Dowling, Elliott has not cited to such evidence. At best, it is

unclear whether the court would have imposed a different sentence. Elliott,

therefore, has not met his burden of showing a reasonable probability that the

result of his sentencing would have been different but for the Booker error, and we

need not determine the fourth element of plain-error review. See Rodriguez, 398

F.3d at 1301.

       In sum, the district court erred under Booker and this error was “plain.” We,

however, may not exercise our discretion to notice this forfeited error because

Elliott has failed to carry his burden of showing that this pre-Booker error affected

his substantial rights. Accordingly, we conclude that the district court did not

plainly err in applying the federal guidelines in sentencing Elliott. We affirm.

       AFFIRMED.




       7
           In comparison, we concluded in Shelton that the defendant carried his burden of
showing that Booker error affected his substantial rights by citing to several statements by the
district court during sentencing, indicating that he wished to impose a sentence lesser than the
low end of the defendant’s guideline range. See Shelton, 400 F.3d at 1332-33.

                                                 14
