                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                     FOR THE ELEVENTH CIRCUIT
                                              U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          November 10, 2005
                             No. 04-15449                THOMAS K. KAHN
                       ________________________               CLERK

                     D. C. Docket No. 02-00021-CR-2

UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                                  versus

RANDALL J. COYLE,

                                               Defendant-Appellant.

                       ________________________

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

                           (November 10, 2005)

Before BLACK, WILSON and COX, Circuit Judges.

PER CURIAM:
      Randall J. Coyle appeals his sentence for conspiracy to commit mail fraud,

wire fraud, and bank fraud, in violation of 18 U.S.C. § 371, and illegal monetary

transactions, in violation of 18 U.S.C. § 1957. He asserts the district court erred in

(1) applying the 2003 edition of the Sentencing Guidelines Manual in violation of

the Ex Post Facto Clause; (2) applying an enhancement under U.S.S.G.

§ 2B1.1(b)(7)(B) for committing a fraudulent action during the course of a

bankruptcy proceeding; (3) applying an enhancement under § 3B1.4 for use of a

minor during the offense; (4) denying his request for a downward departure based

on improper manipulation of the Sentencing Guidelines by the Government; and

(5) committing both constitutional and statutory errors under Unites States v.

Booker, 125 S. Ct. 738 (2005). We affirm the district court with respect to Coyle’s

first four claims, but vacate his sentence and remand for resentencing under

Booker.

                                I. BACKGROUND

      Coyle and his co-conspirators devised a Ponzi scheme to defraud investors.

He was charged with 15 counts arising out of the scheme and pled guilty to two of

the counts: conspiracy to commit mail fraud, wire fraud, and bank fraud, in

violation of 18 U.S.C. § 371, and illegal monetary transactions, in violation of 18

U.S.C. § 1957. Coyle’s total offense level, as calculated under the November

                                          2
2003 Sentencing Guidelines Manual, was 36, which included enhancements for

committing a fraudulent action during the course of a bankruptcy proceeding

under U.S.S.G. § 2B1.1(b)(7)(B) and using a minor during the offense under

§ 3B1.4. Coyle’s offense level of 36 and criminal history category of I created a

recommended Guidelines range of 188–235 months’ imprisonment. However,

because the statutory maximum sentence for these two offenses totaled 180

months’ imprisonment pursuant to § 5G1.1(c)(1) and § 5G1.2(d), his maximum

sentence became 180 months. The district court accordingly sentenced Coyle to

consecutive terms of 60 months’ imprisonment on the first count and 108 months’

imprisonment on the second count.

                                 II. DISCUSSION

      Coyle first claims the district court violated the Ex Post Facto Clause by

applying the November 2003 edition of the Sentencing Guidelines Manual to

determine his sentence for an illegal monetary transaction. He claims this edition

includes fraud and theft amendments that did not take effect until after his most

serious charged offense was completed. We rejected a similar argument in Bailey

v. United States, 123 F.3d 1381, 1405 (11th Cir. 1997), holding “a defendant

knows, when he continues to commit related crimes, that he risks sentencing for

all of his offenses under the latest, amended Sentencing Guidelines Manual.”

                                         3
Coyle continued to commit acts in furtherance of the conspiracy until January

2002, several months after the fraud and theft amendments took effect.

Accordingly, the district court did not err in applying the 2003 Guidelines Manual.

      Coyle next asserts the district court erred in imposing two enhancements to

his sentence. First, he disputes a two-level enhancement imposed for committing

a fraudulent action in the course of a bankruptcy proceeding pursuant to

§ 2B1.1(b)(7)(B). Coyle contends the bankruptcy at issue only involved his

cousin, a co-conspirator, and the enhancement therefore cannot apply to him. The

plain language of § 2B1.1(b)(7)(B) states the enhancement applies to any

“misrepresentation or other fraudulent action during the course of a bankruptcy

proceeding.” Id. (emphasis added). Coyle’s cousin testified that he and Coyle

agreed to conceal information from the bankruptcy court in order to shield the

Ponzi scheme from law enforcement. Thus, these misrepresentations and

fraudulent actions occurred during the course of a bankruptcy proceeding, and the

district court did not err in applying § 2B1.1(b)(7)(B) to Coyle’s sentence.

      Second, Coyle argues the district court erred in applying the § 3B1.4

enhancement for use of a minor during the offense because he never acted

affirmatively to involve a minor. In United States v. McClain, 252 F.3d 1279,

1288 (11th Cir. 2001), we held this enhancement applies to all participants in an

                                         4
offense when the use of a minor was reasonably foreseeable. Coyle’s cousin was

using his minor son to cash checks from a hidden bank account in order to conceal

those funds from the bankruptcy court. Coyle did not dispute the district court’s

finding that he knew his cousin was using his son in this way, and thus concedes

he had actual notice of the use of a minor in the offense. The district court

therefore did not err in applying § 3B1.4 to his sentence.

      Coyle next argues the district court erred in denying his request for a

downward departure based on the Government’s improper manipulation of the

Sentencing Guidelines. This Court “lack[s] jurisdiction [pursuant to 18 U.S.C.

§ 3742(a)] to review a sentencing court’s refusal to depart downward when the

decision is based on the court’s discretionary authority.” United States v. Chase,

174 F.3d 1193, 1195 (11th Cir. 1999). As we recently held, this precedent

remains intact post-Booker because the Supreme Court in Booker did not disturb

18 U.S.C. § 3742(a). United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.

2005). Here, the district court expressly recognized its authority to depart

downward, stating “[t]he concept of a departure on account of guideline

manipulation . . . is one which should be an option.” Accordingly, the district

court recognized its authority to depart downward but chose not to. We thus lack

jurisdiction to review the district court’s decision.

                                           5
      Finally, Coyle claims the district court committed both constitutional and

statutory errors under Booker. We have established there are two types of error

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

sentencing enhancements imposed in a mandatory Guidelines system, and 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, 1329–31 (11th Cir.

2005). The district court did not commit constitutional error because Coyle failed

to object to the facts upon which the court based its sentencing enhancements, and

those facts are thus deemed admitted. See id. at 1330.

      Statutory error exists, however, because the district court sentenced Coyle

under a mandatory Guidelines system. Furthermore, this error is plain, so we need

not decide whether Coyle preserved his Booker claim. To prevail under plain

error review, the burden is on the appellant to show: (1) error; (2) that is plain;

(3) that affects substantial rights. Id. at 1329. “[I]n applying the third prong, we

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

had been applied in an advisory instead of binding fashion by the sentencing judge

in this case.” United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005).

Once the appellant proves these three elements, we may notice the error only if it

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“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Shelton, 400 F.3d at 1329.

        The record supports the reasonable probability the district court would

have imposed a different sentence if the Guidelines were advisory rather than

mandatory. Before sentencing Coyle, the district court stated it was “bound” by

the Guidelines. The court also expressed its frustration with having to start at the

statutory maximum, noting: “I am troubled where there is a statutory maximum

and I see a set of circumstances which do not show me the worst of offenders who

might fall within the proscription of that statute.” Without referring to the factors

under 18 U.S.C. § 3553(a), the court then departed downward, in part because it

did not regard Coyle as the “worst of offenders.” Accordingly, we vacate Coyle’s

sentence and remand for resentencing in light of Booker.

                                 III. CONCLUSION

      The district court did not err in applying the 2003 Sentencing Guidelines

Manual or imposing the two sentencing enhancements challenged by Coyle.

Furthermore, we lack jurisdiction to review the district court’s decision to deny a

downward departure based on improper manipulation of the Guidelines.

However, because the district court committed plain statutory error under Booker,

we vacate Coyle’s sentence and remand for resentencing.

                                           7
        We note the district court correctly calculated Coyle’s Guidelines range of

188-235 months’ imprisonment and his statutory maximum of 180 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 Coyle according to Booker, considering

the Guidelines advisory range, the statutory maximum, and “other statutory

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

757.1

        AFFIRMED IN PART, VACATED AND REMANDED IN PART.




        1
          We do not mean to suggest by our holding that the district court must impose any
particular sentence on remand. Rather, we merely hold Coyle met his burden in showing plain
statutory error. We also do not attempt to decide now whether a particular sentence might be
reasonable in this case.

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