                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________  ELEVENTH CIRCUIT
                                                           JUNE 6, 2005
                            No. 04-13177                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                 D.C. Docket No. 02-00037-CR-WDO-5

UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

                                  versus

STONEY LESTER,
                                              Defendant-Appellant.

                     __________________________

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

                             (June 6, 2005)


                  ON PETITION FOR REHEARING


Before ANDERSON, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      The panel’s opinion in this case issued on April 29, 2005. The mandate was

withheld pursuant to a request by an active judge. Appellant now moves for panel

rehearing. Based on our conclusion we should have also considered Booker

statutory error in the opinion, we GRANT the motion for rehearing and vacate our

previous opinion.

      Stoney Lester appeals his sentence for possession with intent to distribute

more than five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C). He maintains the district court erred in (1) applying the career offender,

obstruction of justice, and dangerous firearm enhancements, in light of Blakely v.

Washington, 124 S. Ct. 2531 (2004), (2) determining marijuana was a controlled

substance for purposes of determining whether Lester was entitled to a career

offender classification, (3) accepting the Pre-Sentence Investigation Report’s

recommendation that Lester receive a two-level enhancement for both obstruction

of justice and possessing a dangerous firearm, (4) not departing downward

because Lester’s career offender enhancement, along with his Criminal History

Category of VI, over-represented the likelihood he would commit future crimes,

and (5) denying Lester’s request for an acceptance of responsibility adjustment.

The district court did not err, and we affirm.




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                                   I. DISCUSSION

A.    Blakely/Booker

      1.     Sixth Amendment

      Lester asserts the district court’s application of the career offender,

obstruction of justice, and dangerous firearm enhancements violated his Sixth

Amendment rights under Blakely, because the underlying facts were not submitted

to a jury. Lester raises this issue for the first time on appeal. We review for plain

error those issues in which timely objections were not made in the district court.

United States v. Olano, 113 S. Ct. 1770, 1776 (1993); see also Fed. R. Crim. P.

52(b). To prevail under a plain-error standard, the appellant must meet the

following three requirements: (1) there must be an error; (2) that error must be

plain; and (3) the plain error must affect substantial rights. Olano, 113 S. Ct. at

1776. Once the appellant proves these three elements, we may notice the error

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

proceedings.” Id. at 1779.

             a.     Career Offender Classification

      “In Almendarez-Torres v. United States [118 S. Ct. 1219 (1998)], the

Supreme Court held that the government need not allege in its indictment and need

not prove beyond a reasonable doubt that a defendant had prior convictions for a

                                            3
district court to use those convictions for purposes of enhancing a sentence.”

United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.), cert. denied, 125 S.

Ct. 637 (2004). In Apprendi, the Supreme Court declined to revisit

Almendarez-Torres and held “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum

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

New Jersey, 120 S. Ct. 2348, 2362–63 (2000).

      In Blakely, the Supreme Court applied the rule it announced in Apprendi to

the State of Washington’s Sentencing Reform Act. 124 S. Ct. at 2534–36. The

Supreme Court struck down an upward departure imposed under Washington’s

sentencing system that was based solely on judicial factfinding, clarifying that the

relevant “statutory maximum for Apprendi purposes is the maximum a judge may

impose solely on the basis of the facts reflected in the jury verdict or admitted by

the defendant.” Id. at 2534–38 (emphasis omitted).

      In United States v. Booker, 125 S. Ct. 738, 756 (2005), the Supreme Court

concluded its holding in Blakely applied to the Federal Sentencing Guidelines and

reaffirmed its holding in Apprendi: “Any fact (other than a prior conviction) which

is necessary to support a sentence exceeding the maximum authorized by the facts




                                          4
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.”

      We recently held that Almendarez-Torres remains the law post-Booker. See

United States v. Camacho-Ibarquen, 404 F.3d 1283, 1290 (11th Cir. 2005).

Accordingly, insofar as the district court’s enhancement of Lester’s sentence under

§ 4B1.1 merely involved a determination Lester had prior convictions, the

enhancement did not implicate Apprendi, Blakely, or Booker, as those cases

exempt prior convictions from the types of facts that must be admitted by the

defendant or proved to a jury beyond a reasonable doubt in order to support a

sentence enhancement.

             b.     Obstruction of Justice and Dangerous Firearm Enhancements

      Lester’s argument that his obstruction of justice and dangerous firearm

enhancements violate his Sixth Amendment rights also fails. As discussed below,

the district court did not err when it determined Lester was entitled to a career

offender classification. Because Lester’s guideline range was determined based

on the career offender classification, and the obstruction of justice and dangerous

firearm enhancements affected neither his statutory maximum as defined in

Booker, nor his sentence, any potential error was harmless. See Booker, 125 S. Ct.

at 769 (stating the harmless error doctrine still applies to sentencing issues).

                                           5
      2.     Statutory Error

      The Supreme Court indicated that both its “Sixth Amendment holding and

. . . remedial interpretation of the Sentencing Act” must be applied “to all cases on

direct review.” Booker, 125 S. Ct. at 769. We have clarified there are two types

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

sentencing enhancements 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, 1329–34 (11th Cir. 2005).

      Here, there is error that is plain because the district court treated the

Guidelines as mandatory. See Shelton, 400 F.3d at 1331. In applying the third

prong of the plain error test, “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). “To establish the third prong takes something

more than showing the district court sentenced within the Guidelines range and

felt bound to do so, especially given that the Guidelines range remains an

important factor in sentencing.” Shelton, 400 F.3d at 1332. The fact the district

court sentenced the defendant to the bottom of the applicable Guidelines range

                                           6
does not establish a reasonable probability the court would have imposed a lesser

sentence under an advisory regime. United States v. Fields, 11th Cir., 2005, __

F.3d __ (No. 04-12486 at *8–9, May 16, 2005).

      At sentencing, the district judge stated he was “sentencing [Lester] as a

career offender because I think I’m required to do so. It’s not a matter of choice.”

Additionally, Lester was sentenced to the lowest possible Guidelines sentence.

However, that the district court sentenced within the Guidelines range and felt

bound to do so, and that Lester was sentenced at the low end of the range is not

enough to establish the third prong. See Shelton, 400 F.3d at 1332, Fields, No. 04-

12486 at *8–9. Thus, Lester has not satisfied the third prong of the plain error test

and cannot show plain error in being sentenced under a mandatory Guidelines

system.

B.    Controlled Substance and Career Offender Classification

      Lester next argues the district court erred in classifying him as a career

offender because he did not have the requisite prior felony offenses as Georgia law

does not recognize marijuana as a controlled substance. We review de novo the

district court’s interpretation of the Guidelines. United States v. Rubio, 317 F.3d

1240, 1242 (11th Cir. 2003). The Guidelines provide a defendant is a career

offender if: (1) he was at least 18 years old at the time he committed the instant

                                          7
offense of conviction; (2) the instant offense of conviction is a felony that is either

a crime of violence or a controlled substance offense; and (3) he had at least two

prior felony convictions of a crime of violence or controlled substance offense.

U.S.S.G. § 4B1.1. A controlled substance offense is “an offense under federal or

state law, punishable by imprisonment for a term exceeding one year, that

prohibits the manufacture, import, export, distribution, or dispensing of a

controlled substance . . . or the possession of a controlled substance . . . with intent

to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b).

      In United States v. Simon, the defendant argued he could not be deported

because his Florida state law conviction for possessing cocaine was not a drug

trafficking crime under Florida law. Simon, 168 F.3d 1271, 1272 n.2 (11th Cir.

1999). We rejected his argument stating “trafficking crimes are defined under the

CSA [Controlled Substances Act] and federal, not state, definitions govern under

the Guidelines.” Id.; see also United States v. Tamayo, 80 F.3d 1514, 1523 (11th

Cir. 1996) (the definition of a valid conviction for federal sentencing purposes is

defined by federal, not state law).




                                           8
       Our reasoning in Simon and Tamayo is dispositive of the current case

because federal law classifies marijuana as a controlled substance.1 We have also

stated conspiracy to possess marijuana with intent to distribute is a controlled

substance offense for purposes of the U.S.S.G. § 4B1.1 career criminal

classification. United States v. Weir, 51 F.3d 1031, 1031 (11th Cir. 1995).

Further, although Georgia law, according to Asberry v. State, 467 S.E.2d 225,

226–227 (Ga. App. 1996), does not consider marijuana a controlled offense,

federal law, and not state law, governs under the federal Sentencing Guidelines.

Simon, 168 F.3d at 1272 n.2; Tamayo, 80 F.3d at 1523. Thus, the district court did

not err when it concluded Lester’s prior conviction for possessing and selling

marijuana was a controlled substance offense for purposes of classifying him as a

career offender.

C.     Obstruction of Justice and Dangerous Firearm Enhancements

       Lester further maintains the district court erred in applying the dangerous

firearm (U.S.S.G. § 2D1.1(b)(1)) and obstruction of justice enhancements

(U.S.S.G. § 3C1.1). We review for clear error the district court’s findings of fact

when it enhances a defendant’s sentence in obstruction of justice cases and for


       1
         The United States Code states that a controlled substance is any drug or substance listed in
schedule I, II, III, IV, and V of 21 U.S.C. § 812. 21 U.S.C. § 802(6). Section 812 lists marijuana
as a schedule I drug. 21 U.S.C. § 812, Schedule I (c)(10).

                                                 9
cases involving U.S.S.G. § 2D1.1(b)(1), and review the application of the

sentencing guidelines de novo. United States v. Uscinski, 369 F.3d 1243, 1246

(11th Cir. 2004) (obstruction cases); United States v. Gallo, 195 F.3d 1278, 1280

(11th Cir. 1999) (§ 2D1.1(b)(1) cases).

       The probation department originally assigned Lester a base offense level of

26, and with the additional four levels from the obstruction and dangerous firearm

enhancements, his total offense level was 30. However, because Lester is a career

offender with a statutory maximum of 40 years, his offense level had to be 34,

pursuant to § 4B1.1(B).2 Therefore, if there was any error in applying the

obstruction and dangerous firearm enhancements, it was harmless. See Fed. R.

Crim. P. 52(a) (“Any error, defect, irregularity or variance which does not affect

substantial rights shall be disregarded”).

D.     Downward Departure

       Lester also contends the district court erred in denying his request for a

downward departure because his career offender enhancement and his criminal

history category of VI overstate his past crimes and the likelihood he will commit

future crimes. He also maintains the district court violated Blakely because it


       2
         Although the statutory maximum for Lester’s offense is life, Lester was told at his plea
hearing that the statutory maximum was 40 years. Both the district court and the parties relied on
the 40 year maximum to determine the career offender offense level.

                                               10
never submitted to a jury the issue of whether he was entitled to a downward

departure. We lack jurisdiction to review a district court’s denial of a downward

departure when the court bases its decision on its discretionary authority. United

States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999). We have jurisdiction,

however, to review the defendant’s claim the district court mistakenly lacked

discretionary authority to depart. Id. When nothing in the record indicates

otherwise, we will assume the district court understood it had the authority to

depart downward, thus precluding review. Id.

      Although the district court did not comment on why it did not grant the

departure, we assume the district court was aware it had the authority to depart and

chose to exercise its discretionary authority to deny the departure. Thus, we lack

jurisdiction to consider Lester’s claim. See id.

E.    Acceptance of Responsibility

      Finally, Lester avers the district court erred in not applying the acceptance

of responsibility adjustment. “We review the district court’s determination of

acceptance of responsibility only for clear error.” United States v. Amedeo, 370

F.3d 1305, 1320 (11th Cir. 2004). Further, we will not set aside a district court’s

determination a defendant is not entitled to a reduction for acceptance of




                                         11
responsibility “unless the facts in the record clearly establish that a defendant has

accepted personal responsibility.” Id. at 1320–21.

      U.S.S.G. § 3E1.1 allows the district court to decrease the offense level by

two levels “[i]f the defendant clearly demonstrates acceptance of responsibility for

his offense.” The Guidelines state evidence of the defendant’s truthful admission

of his criminal conduct “may be outweighed by conduct of the defendant that is

inconsistent with such acceptance of responsibility. A defendant who enters a

guilty plea is not entitled to an adjustment under this section as a matter of right.”

U.S.S.G. § 3E1.1, comment. (n.3). Moreover, the guidelines also state that, an

enhancement for obstruction of justice (§ 3C1.1) generally indicates the defendant

has not accepted responsibility for his criminal conduct, however, extraordinary

cases may exist “in which adjustments under both §§ 3C1.1 and 3E1.1 may

apply.” U.S.S.G. § 3E1.1, comment. (n.4). The sentencing judge has discretion to

determine whether a defendant receives the two level reduction. United States v.

Thayer, 204 F.3d 1352, 1358 (11th Cir. 2000). Since a defendant’s continued use

of illegal drugs constitutes a continuation of the drug offense for which he was

convicted, the district court’s denial of an adjustment for acceptance of

responsibility is not clearly erroneous. United States v. Matthews, 168 F.3d 1234,

1250 (11th Cir. 1999).

                                          12
      The district court did not clearly err when it accepted the probation

department’s recommendation that Lester not receive an adjustment for acceptance

of responsibility. At Lester’s pre-trial release revocation hearing, the Government

provided testimony and lab evidence that Lester, while on pre-trial release, tested

positive for cocaine use on two separate occasions. Because a district court can

use its discretion to deny an acceptance of responsibility adjustment based on the

defendant’s continued illegal drug use, the district court did not clearly err when it

denied Lester’s request for an acceptance of responsibility adjustment. See

Thayer, 204 F.3d at 1358; Matthews, 168 F.3d at 1250.

                                II. CONCLUSION

      The district court did not err in applying the career offender, obstruction of

justice, and dangerous firearm enhancements, or in denying Lester’s request for an

acceptance of responsibility adjustment. We lack jurisdiction to review the district

court’s denial of downward departure.

      AFFIRMED.




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