                                                    [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________
                                                               FILED
                                                     U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                            No. 04-11678
                                                          March 14, 2006
                        Non-Argument Calendar
                                                        THOMAS K. KAHN
                      ________________________              CLERK

                   D. C. Docket No. 03-20587-Cr-Gold

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

EDUARDO V. SAENZ,


                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                            (March 14, 2006)

                  ON REMAND FROM THE
            SUPREME COURT OF THE UNITED STATES

Before ANDERSON, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:
      This case is before us for consideration in light of United States v. Booker,

543 U.S. 220, 125 S. Ct. 738 (2005). Saenz v. United States,      U.S.      , 126 S. Ct.

321 (2005). We previously affirmed Saenz’s sentence and conviction. See United

States v. Saenz, No. 04-11678 (11th Cir. Dec. 30, 2004) (per curiam).

      Following Saenz’s conviction, the probation officer recommended a two-

level adjustment to Saenz’s base offense level. Saenz objected to the factual basis

for the adjustment and, at the sentencing hearing, introduced expert testimony

regarding the applicability of the enhancement in this case. R6 at 14-17, 23. The

district court found, by a preponderance of the evidence, that Saenz was “not only

a supervisor but was an organizer and leader” based on Saenz’s decision-making

authority concerning the transaction, including the price of the cocaine and the

times and places of the meetings regarding the purchase of the cocaine. Id. at 87.

The district court also noted that Saenz was identified by one of his co-

conspirators, whom the district court found credible, as the owner of the cocaine

and that Saenz directed and supervised at least two associates, one of whom

delivered the cocaine. Id. The district court observed that Saenz’s witness had not

reviewed the evidence and rejected his testimony as “speculation and conjecture.”

Id.




                                          2
      On appeal, Saenz argued, inter alia, that the imposed sentencing

enhancement as an organizer or leader was unconstitutional because it was based

on conduct which had neither been submitted to the jury nor proven beyond a

reasonable doubt, citing Blakely v. Washington, 542 U.S. 296, 126 S. Ct. 2531

(2004) and Booker. Because we had previously ruled held that Blakely did not

impact the application of the Sentencing Guidelines, we held that the district court

did not commit plain error. Saenz, slip. op. at 20-21. The Supreme Court vacated

our prior judgment and remanded for further consideration in light of Booker.

Saenz,   U.S. at   , 126 S. Ct. at 321.

      After remand, we directed the parties to file supplemental briefs providing

us with: (1) a description of when, where, and how the Booker issue was first

raised; and (2) any arguments about whether and how the Booker decision applies

in this case and what action should be taken. In supplemental briefing, Saenz

argues that his sentence falls within both constitutional and statutory Booker error

because his sentence was enhanced based on facts not supported by the jury’s

verdict or proved beyond a reasonable doubt. He maintains that he was prejudiced

and notes that his sentence was at the bottom of the guideline range and that the

district court’s findings of fact were made under a preponderance of the evidence,

instead of a beyond a reasonable doubt, standard. He also contends that the district



                                          3
court applied the Sentencing Guidelines as mandatory but commented that it was

doing so with “some reluctance” and did not review all of the 18 U.S.C. § 3553

statutory factors.

       Because Saenz raised the Booker issue for the first time on appeal, we

review for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir.), cert. denied,   U.S.   , 125. S. Ct. 2935 (2005). Under plain error review,

we will reverse only if “there is (1) error, (2) that is plain, and (3) that affects

substantial rights.” Id. The defendant does not meet his burden of showing that

the error affected his substantial rights if we must speculate as to how he would

have been sentenced without the error. United States v. Williams, 408 F.3d 745,

748-49 (11th Cir. 2005) (per curiam). If the defendant is able to show that the

three conditions are met, we may exercise our discretion to notice the “forfeited

error, but only if (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Rodriguez, 398 F.3d at 1298.

       There are two types of Booker error – (1) a “constitutional” error of

imposing a sentence enhancement based upon a judicial finding that goes beyond

the facts admitted by a defendant or found by a jury, and (2) a “statutory” error of

imposing a sentence under a mandatory guidelines system. United States v.

Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). Under Booker, a constitutional



                                             4
error occurs when a defendant is subjected to “extra-verdict enhancements used in

a mandatory guidelines system.” Rodriguez, 398 F.3d at 1300. Under Booker, a

statutory error occurs when a defendant is sentenced “under a mandatory

[g]uidelines scheme, even in the absence of a Sixth Amendment enhancement

violation.” United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (per

curiam) (quotation and citation omitted).

       Following Booker, district courts must continue to consult the Guidelines in

formulating a defendant’s sentence and must correctly calculate a defendant’s

Guidelines sentencing range, United States v. Jordi, 418 F.3d 1212, 1215 (11th

Cir.), cert. denied,   U.S.   , 126 S. Ct. 812 (2005), including the provisions

addressing extra-verdict enhancements. Rodriguez, 398 F.3d at 1300. A

resentencing proceeding would thus involve “exactly the same evidence presenting

exactly the same factual issues . . . already resolved” and would require the district

court “to at least consider exactly the same guideline enhancement provisions it has

already applied.” Id. at 1300-01.

       Saenz satisfies the first and second prongs of the plain error analysis for both

constitutional and statutory error because his sentence was enhanced, under a

mandatory guidelines system, based on facts not found by a jury under a

reasonable doubt standard but found by the district court under a preponderance of



                                            5
the evidence standard. There is no indication in the record, however, that this error

affected the outcome of Saenz’s sentence.

      The district court commented that it had considered the evidence presented

during the sentencing hearing and during the trial. See R6 at 85. It noted that it

had considered the testimony of Saenz’s coconspirator, Perez, regarding Saenz’s

offense conduct and found it credible. Id. at 87. Reviewing the law, the district

court remarked that Saenz would qualify for an enhancement as organizer or

manger if he had supervised merely one other person and that Saenz’s role far

surpassed that threshold. Id. at 86-87. The court recited that Saenz “had all of the

decision-making authority concerning [the cocaine] transaction and this

conspiracy[], . . . set the price,” “controlled the meeting places and times,”

“supervised and directed his associates,” including the individual who delivered

the cocaine, and that “all the transactions were completed” “through him.” Id. at

87. Based on the district court’s consideration of this evidence, Saenz is unable to

satisfy the third prong. See Williams, 408 F.3d at 754-56 (declining to remand

under a Booker plain error analysis where the witnesses’s testimony and the district

judge’s commentary on the evidence and consideration of the Guidelines did not

indicate a reasonable probability of a different result if the Guidelines had been

imposed in an advisory manner); United States v. Fields, 408 F.3d 1356, 1360



                                           6
(11th Cir.), cert. denied,     U.S.    , 126 S. Ct. 221 (2005) (declining to remand

under a Booker plain error analysis where the evidence established the sufficient

number of supervisees for a manager or supervisor enhancement).

       Further, Saenz cannot show that he would have received a more lenient

sentence if the district court had considered the Guidelines in an advisory capacity.

Saenz was sentenced to the lowest sentence within the appropriate Guidelines

sentence range of 188-235 months. R6 at 90-91. The district court found that the

188 month sentence was “sufficiently punitive” but noted that Saenz’s submission

of an untruthful safety valve statement justified a “much higher” sentence within

the Guidelines range.1 Id. at 89, 90, 91. The district court expressed no doubt or

hesitation about the propriety of the imposed sentence but only that it felt the

sentence to be appropriate rather than merely mandated. Without more, Saenz is

not able to show prejudice. See Fields, 408 F.3d at 1361 (“the fact that the district

court went as low as it could under the mandatory guidelines system, without

more, is [too speculative and is] not enough to carry that burden.”)

       Last, Saenz contends that the district court erred by failing to consider the

factors enumerated in 18 U.S.C. § 3553(a) in calculating his sentence. Saenz failed



       1
         Despite Saenz’s argument, the district court’s statement of “reluctance” was in
sentencing Saenz to 188 months instead of a higher sentence although it believed that a higher
sentence might have been justified. R6 at 91.

                                                7
to request specific findings on the § 3553(a) factors at sentencing, see R6 at 95,

and did not raise the issue in the district court or in his initial brief on appeal, and

the Supreme Court’s remand instructions do not require us to consider new issues.

We will not, therefore, consider it.2 See United States v. Dockery, 401 F.3d 1261,

1262-63 (11th Cir. 2005) (per curiam), cert. denied,           U.S.     , 126 S. Ct. 442

(2005).

        Because Saenz is unable to establish that he would have received a lesser

sentence if the guidelines had been advisory, he is unable to show plain error in the

district court’s sentence. We, therefore, reinstate our previous opinion in this case

and affirm Saenz’s sentence after our reconsideration in light of Booker, pursuant

to the Supreme Court’s remand.

       OPINION REINSTATED IN PART; SENTENCE AFFIRMED.




       2
           We note, however, that the district court expressly commented that it had considered
punishment in sentencing Saenz. R6 at 90-91; see United States v. Robles, 408 F.3d 1324, 1328
(11th Cir. 2005) (per curiam) (“[W]e would not expect the district court in every case to conduct
an accounting of every § 3553(a) factor . . . and expound upon how each factor played a role in
its sentencing decision.”)

                                                8
