                Not For Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 03-1006

                      UNITED STATES OF AMERICA,

                                 Appellee,

                                      v.

                              PEDRO PACHECO,

                         Defendant, Appellant.


         ON REMAND FROM THE UNITED STATES SUPREME COURT



                                   Before

                        Boudin, Chief Judge,
                       Selya, Circuit Judge,
              and Schwarzer,* Senior District Judge.


     Rafael Anglada-Lopez, by appointment of the court, on brief
for appellant.
     H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón and
Nelson Pérez-Sosa, Assistant United States Attorneys, on brief for
appellee.



                               July 1, 2005


__________
*Of the Northern District of California, sitting by designation.
           Per   Curiam.      On    November    1,   2004,   we   affirmed   the

conviction of defendant-appellant Pedro Pacheco for conspiring to

distribute controlled substances. See United States v. Del Rosario

et al., 388 F.3d 1, 5 (1st Cir. 2004).                At the same time, we

affirmed   the     district    court's      imposition       of   a   235-month

incarcerative sentence.       Id. at 13.       The appellant petitioned for

certiorari.      While his petition was pending, the Supreme Court

decided United States v. Booker, 125 S. Ct. 738 (2005).

           The Court, in a routine order, thereafter granted the

petition for certiorari pro forma, vacated our judgment, and

remanded for further consideration in light of Booker. See Pacheco

v. United States, 125 S. Ct. 1866 (2005).            We directed the parties

to submit supplemental briefs and proffers.              Having received and

reviewed those materials, we again uphold Pacheco's sentence and

reinstate the judgment.

           We need not tarry.        The appellant argues, in substance,

that his case should be remanded for resentencing because the

district court sentenced him under a mandatory guidelines system.

We agree that such an error occurred.           The appellant, however, did

not preserve this claim of error below; thus, his contentions are

reviewed for plain error. See United States v. Antonakopoulos, 399

F.3d 68 (1st Cir. 2005).           Under that regime, the appellant must

show a "reasonable probability" that the district court would have

imposed a lower sentence had it realized that the sentencing


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guidelines could be treated as advisory.                See id. at 75; see also

United States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).

              In this type of case, we are not "overly demanding as to

proof of probability."            Heldeman, 402 F.3d at 224.        Here, however,

the appellant has offered us nothing approaching such a showing.

See id. (requiring, at a bare minimum, a "reasonable indication

that the district judge might well have reached a different result

under advisory guidelines").

              The    district     court    said    nothing   that   indicated     any

dissatisfaction with the sentence that it imposed. The few factors

to which the appellant adverts in his effort to persuade us that

the court would have been more lenient are unconvincing.                          For

example, it is not enough to say that the sentencing judge is "very

. . . benevolent" (even though that is true).                   Nor is it enough

simply to point out that the district court sentenced the appellant

at the low end of the guideline sentencing range.                    Our case law

makes      clear    that   such    a   circumstance,     without    more,    is   not

sufficient to show a reasonable probability of prejudicial Booker

error.      See, e.g., United States v. Kornegay, ___ F.3d ___, ___

(1st Cir. 2005) [No. 04-1681, slip op. at 20-21]; United States v.

Figuereo, 404 F.3d 537, 541-42 (1st Cir. 2005).                Here, there is no

"more."

              We make one final point.            The appellant suggests that he

is   now    "inclined"     to     accept   responsibility     for    his    criminal


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activity, even though he did not do so up to (and at) the time of

sentencing. Passing the noncommittal nature of the statement, that

sort   of   change   of   heart   is    not   a   proper   consideration   in

determining whether a Booker error was prejudicial.

            We need go no further.       Because the appellant has failed

to convince us that there is any likelihood that the district

court, under an advisory guidelines system, would have imposed a

sentence below the sentence actually imposed, we again affirm his

conviction and sentence and order our earlier judgment reinstated.

            So Ordered.




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