                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________
                                                                       FILED
                             No. 05-10442
                                                                U .S . COURT OF APPEALS
                         Non-Argument Calendar                     ELEVENTH CIRCUIT
                       ________________________                         August 12, 2005
                                                                   THOMAS K. KAHN
                     D. C. Docket No. 04-00196-CR-4                    CLERK


UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

CHRISTOPHER MICHAEL JAMES,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________
                            (August 12, 2005)


Before CARNES, MARCUS and FAY, Circuit Judges.

PER CURIAM:
      Christopher Michael James, through counsel, appeals his 51-month sentence

for bank robbery, in violation of 18 U.S.C. § 2113(a). On appeal, James argues

that, in light of United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d

621 (2005), the district court committed plain error by applying the Sentencing

Guidelines in a mandatory, as opposed to advisory, fashion. Accordingly, James

maintains that he is entitled to have his case remanded to the district court for re-

sentencing consistent with Booker. The government concedes that remand is

appropriate.1

      Because James failed to make any objection regarding the mandatory

application of the Federal Sentencing Guidelines, we review only for plain error.

United States v. Rodriquez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied,

___ S.Ct. ___ (June 20, 2005). In order for us to correct plain error: (1) there must

be error, (2) the error must be plain, and (3) the error must affect substantial rights.

Id. We have indicated that in applying the third prong of plain error review, the

proper question is “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.” Id. “If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error, but only if (4) the



      1
          We applaud and appreciate the candor of counsel for the government.

                                                2
error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation omitted). We have recognized that “the plain error

test is difficult to meet,” and that “the plain error rule places a daunting obstacle

before the appellant.” Id. (alterations and quotations omitted).

        In order to decide the issue presented by James, we must review the

Supreme Court’s recent decision in Booker, in which the Supreme Court concluded

that the mandatory nature of the Guidelines implicated the Sixth Amendment right

to a jury trial. 543 U.S. ___, 125 S.Ct. at 756. In a second and separate majority

opinion, the Court held that to best preserve Congressional intent, the appropriate

remedy was to sever and excise the following two provisions of the Sentencing

Reform Act (“the Act”): 18 U.S.C. § 3553(b)(1) (making the Guidelines mandatory

and binding on federal courts), and 18 U.S.C. § 3742(e) (establishing appellate

standards of review), 543 U.S. at ___, 125 S.Ct. at 764. By severing these two

provisions, the Supreme Court made the Guidelines “effectively advisory.” Id.

      In this case, the court sentenced James to 51 months imprisonment but

immediately thereafter made these comments:

               I wish that I did not have to give this sentence today,
               particularly in light of James’s clean criminal record,
               his status as a college student, and the fact that he did
               not abuse alcohol or drugs.

(R.2 at 40).

                                             3
      The sentencing judge continued to express his dissatisfaction with the

Federal Sentencing Guidelines and the fact that he had so little or no discretion in

arriving at an appropriate sentence for the individual involved.

      Based upon this record, as well as the parties’ respective briefs, we hold that

the district court’s application of the Guidelines as mandatory was an error that is

plain under the first two prongs of the plain-error test. See United States v.

Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). James can satisfy the third

prong of the test because comments made by the district court indicate that James

would have received a lesser sentence had the Guidelines been merely advisory.

Likewise, the district court’s comments indicating its desire to impose a lesser

sentence establish the fourth prong of the plain error analysis because failure to

notice the forfeited error would leave James with a sentence that the district did not

want to impose. See Shelton, 400 F.3d at 1333-34. Accordingly, we vacate

James’s sentence and remand this case to the district court for re-sentencing

consistent with Booker.

      VACATED AND REMANDED.




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