                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                                                                 FILED
                             No. 04-13896
                                                        U.S. COURT OF APPEALS
                         Non-Argument Calendar            ELEVENTH CIRCUIT
                       ________________________                July 6, 2005
                                                           THOMAS K. KAHN
                   D. C. Docket No. 04-20038-CR-DLG            CLERK


UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ARTURO HERRERA,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________
                               (July 6, 2005)


Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:
         Arturo Herrera (“Herrera”) appeals his 23-month sentence, imposed after he

pled guilty to one count of illegal reentry after deportation, in violation of 8 U.S.C.

§§ 1326(a) and (b)(2). We find that the district court did not commit plain error in

applying the Guidelines in a mandatory fashion, because Herrera failed to show

that his substantial rights were affected, or in imposing an eight-level enhancement

under U.S.S.G. § 2L1.2(b)(1)(c), because the record reflected that Herrera had

previously been convicted of a drug offense that qualified as an aggravated felony.

Accordingly, we AFFIRM.

                                  I. BACKGROUND

         Herrera was indicted by a federal grand jury for: (1) illegally re-entering the

United States after deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2); and

(2) representing himself as a United States citizen to gain entry into the United

States, in violation of 18 U.S.C. § 911. Via a plea agreement, Herrera, pled guilty

to Count 1 of the indictment. The government agreed to dismiss the remaining

count.

         At Herrera’s change-of-plea hearing, the government asserted that the

evidence indicated: (1) that Herrera was deported on or about 1 March 1996; (2)

that he was removed from the United States on 27 January 1999; (3) that he had

previously been convicted of an aggravated felony; and (4) that he attempted to



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enter the United States again. Herrera admitted these facts except to the extent that

the government alleged that he had previously been convicted of an aggravated

felony, and he pled guilty to the first count.

      According to the presentence investigation report (“PSI”), Herrera’s base

offense level was 8, pursuant to U.S.S.G. § 2L1.2. The PSI added eight additional

levels, under § 2L1.2(b)(1)(c), because Herrera previously had been deported or

unlawfully remained in the United States after a conviction for an aggravated

felony. Three levels were deducted from the base offense level to reflect Herrera’s

acceptance of responsibility, under U.S.S.G. § 3E1.1(a) and (b). The resulting total

offense level was calculated to be 13. The PSI indicated that Herrera’s previous

convictions placed him in a criminal history category of III. Accordingly, the PSI

indicated that the corresponding guideline range was 18 to 24 months. In

describing Herrera’s prior criminal history, the PSI referenced, inter alia, a

previous conviction for criminal possession of a controlled substance in New York.

The PSI indicated that in 1988, Herrera was found guilty and sentenced to 4 years

of imprisonment. The PSI did not indicate, however, the statute which Herrera was

convicted of violating. Neither Herrera nor the government filed objections to the

contents of the PSI.




                                            3
      At sentencing, the district court asked whether the parties objected to any

aspect of the PSI, and Herrera indicated that he did not. The court then adopted the

findings of fact and conclusions of law contained in the PSI. The court sentenced

Herrera to 23 months of imprisonment and 3 years of supervised release.

                                 II. DISCUSSION

      On appeal, Herrera maintains that the district court imposed a sentence

within the guideline range, and included a term of supervised release, because it

understood the Guidelines to be mandatory. He argues that had the court treated

the Guidelines as merely advisory, it might have exercised its discretion to impose

a lesser sentence. Herrera contends that “[t]o say that [he] would receive the same

sentence – including the guideline-mandatory 3-year supervised release term –

absent the guideline range is speculative at best, and on this record, most unlikely.”

Appellant’s Brief at 10. Herrera contends that the PSI failed to consider the

sentencing factors listed in 18 U.S.C. § 3553 when recommending a sentence.

Accordingly, he maintains, his substantial rights were affected, and a resentencing

is warranted.

      In response, the government asserts that the district court erred under United

States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), only in believing

mistakenly that it was required to apply the guidelines in a mandatory fashion.



                                           4
Because Herrera did not object below to the imposition of a guideline sentence, the

government contends that we should review his sentence for plain error only. The

government concedes that this Booker error was plain but argues that Herrera has

not shown that the error affected his substantial rights because the facts supporting

his sentencing enhancement were essentially uncontroverted. Furthermore, the

government maintains, Herrera has not demonstrated that there is a reasonable

probability that the district court would have imposed a different sentence had it

considered the Guidelines advisory rather than mandatory In fact, the government

asserts, the fact that the district court imposed a sentence near the top of the

guideline range indicates that it is not likely that the court would have imposed a

lower sentence under advisory guidelines. Finally, the government contends that

Herrera has not demonstrated that the error seriously affected the fairness,

integrity, or public reputation of the judicial proceedings.

      Because Herrera did not raise a constitutional challenge to his sentence in

the district court, we review his appellate claims regarding the constitutionality of

his sentence only for plain error. United States v. Shelton, 400 F.3d 1325, 1328

(11th Cir. 2005). To satisfy the plain-error standard, we must find that (1) the

district court committed “error,” (2) the error was plain or obvious, and (3) the

error “affected substantial rights.” Id. at 1328-29. If these criteria are met, we



                                            5
may, in our discretion, correct the plain error if it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 1329 (citation and

internal quotation omitted).

      In Apprendi v. New Jersey, the Supreme Court held that “[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.” 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000). In

Blakely v. Washington, the Court held that “the ‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant. . . . In other words,

the relevant ‘statutory maximum’ is not the maximum sentence a judge may

impose after finding additional facts, but the maximum he may impose without any

additional findings.” 542 U.S. at ___, 124 S. Ct. 2531, 2537 (2004) (citation

omitted).

      After the sentencing in the instant case, the Supreme Court issued its

decision in Booker and found “no distinction of constitutional significance

between the Federal Sentencing Guidelines and the Washington procedures at

issue” in Blakely. Booker, 543 U.S. at ___, 125 S. Ct. at 749. Resolving the

constitutional question left open in Blakely, the Court held that the mandatory



                                            6
nature of the Guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial. Id. at ___,125 S. Ct. at 749-51. In extending

its holding in Blakely to the Guidelines, the Court explicitly reaffirmed its rationale

in Apprendi that “[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts 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.” Id. at ___, 125 S. Ct. at 756.

      In a second and separate majority opinion in Booker, Justice Breyer

concluded that, to best preserve Congress’s intent in enacting the Sentencing

Reform Act of 1984, the appropriate remedy was to “excise” two specific

sections—18 U.S.C. § 3553(b)(1) (requiring a sentence to be within the guideline

range, absent a departure) and 18 U.S.C. § 3742(e) (establishing standards of

review on appeal, including de novo review of departures from the applicable

guideline range)—thereby effectively rendering the Sentencing Guidelines

advisory only. Id. at ___, 125 S. Ct. at 764. The Court indicated that both its

“Sixth Amendment holding and . . . remedial interpretation of the Sentencing Act”

must be applied to “all cases on direct review.” Id. at ___, 125 S. Ct. at 769.

      As we have explained, there are two types of Booker errors: (1) Sixth

Amendment error based upon sentencing enhancements neither admitted by the



                                           7
defendant nor submitted to a jury and proven beyond a reasonable doubt; and (2)

statutory error based upon sentencing under a mandatory Guidelines system.

Shelton, 400 F.3d at 1329-31. In the instant case, the district court applied the

Guidelines in a mandatory fashion. However, the only enhancement applied to

Herrera’s sentence reflected a prior conviction. The Booker court specifically

indicated that only facts other than prior convictions must be admitted by the

defendant or proved to a jury beyond a reasonable doubt, 543 U.S. at ___, 125

S.Ct. at 756, and we recently held that “there is no Sixth Amendment violation

when a district court enhances a sentence based on prior convictions.” United

States v. Gallegos-Aguero, __ F.3d __, __ (11th Cir. May 18, 2005). Accordingly,

the imposition of the enhancement to reflect Herrera’s prior conviction was not

constitutional Booker error.

      As to a district court’s statutory error, a defendant meets the first and second

prongs of the plain error test if the district court considered the Guidelines to be

mandatory at the time of sentencing and if the error was plain at the time of

appellate consideration. United States v. Cartwright, __ F.3d __, __ (11th Cir.

June 24, 2005). To satisfy the third prong of plain error, the defendant must

demonstrate that the error “‘affects [his] substantial rights,’ and that the error

‘actually did make a difference.’” Id. (quoting United States v. Rodriguez, 398



                                            8
F.3d 1291, 1298 (11th Cir.), cert. denied, 73 U.S.L.W. 3531 (June 20, 2005) (No.

04-1148)). In other words, the defendant must show that “‘there is a reasonable

probability of a different result if the guidelines had been applied in an advisory

instead of binding fashion . . .’” Id. (quoting Rodriguez, 398 F.3d at 1300).

      In this case, the district court’s application of the Guidelines in a mandatory

fashion constituted Booker error, and the error is now plain. Id. at __. However,

we conclude that Herrera failed to satisfy the third prong of plain error. Herrera

has not shown, and the record does not indicate, that he would have received a

lesser sentence had the district court considered the Guidelines advisory as

opposed to mandatory. The court sentenced Herrera towards the upper end of the

guideline range, 23 months, and without a clear statement or sign from the district

court that it would have imposed a lighter sentence but for the fact that its

discretion was constrained under the Guidelines, we can only speculate as to the

likelihood of a different result. Herrera, therefore, has not met his burden of

showing a reasonable probability that the result of his sentencing would have been

different but for the Booker error, and we need not apply the fourth prong of the

plain error standard.

      Additionally, Herrera asserts that the district court plainly erred in

determining that he qualified for an eight-level enhancement under U.S.S.G. §



                                           9
2L1.2(b)(1)(c), because nothing in his criminal history constitutes an aggravated

felony. If this enhancement was imposed to reflect his prior conviction of

“criminal possession of a weapon,” he asserts, the record fails to support the

enhancement because the government did not meet its burden of showing that the

offense qualified as a crime of violence, and none of the categories of aggravated

felonies apply to the weapon possession conviction at issue. Appellant’s Brief at

18-19. Herrera further asserts that his prior conviction for simple possession of a

controlled substance would not qualify as a “‘drug trafficking crime’” under

U.S.S.G. § 2L1.2(b)(1). Id. at 20. Because the record does not indicate which

offense the PSI relied upon in adding the eight-level enhancement, he contends, the

district court plainly erred in imposing the enhancement, and this Court should

remand for resentencing.

      We review the district court’s interpretation of the Sentencing Guidelines de

novo. United States v. Simon, 168 F.3d 1271, 1272 (11th Cir. 1999). Objections

to sentencing issues that are not raised at the district court, however, are reviewed

for plain error to avoid manifest injustice. United States v. Harness, 180 F.3d

1232, 1234 (11th Cir. 1999). Because Herrera did not dispute the imposition of the

eight-level enhancement in the district court, we review for plain error.




                                          10
      The government bears the burden of establishing that a sentence

enhancement is warranted. United States v. Hernandez, 145 F.3d 1433, 1440 (11th

Cir. 1998). U.S.S.G. § 2L1.2 (unlawfully entering or remaining in the United

States) is the guideline applicable to the offense of being illegally found in United

States after deportation, 8 U.S.C. § 1326. See U.S.S.G. App. A. In detailing the

applicable specific offense characteristics, § 2L1.2 indicates that if the defendant

previously was deported after a “conviction for an aggravated felony,” the base

offense level should be increased by eight levels. U.S.S.G. § 2L1.2(b)(1)(c). The

commentary to § 2L1.2 defines “aggravated felony” as it is defined in 8 U.S.C. §

1101(a)(43), which, in turn, defines “aggravated felony” as “including a drug

trafficking crime (as defined in section 924(c) of Title 18).” See U.S.S.G. § 2L1.2,

comment. (n.3(A)); 8 U.S.C. § 1101(a)(43)(B). Section 924(c)(2) defines the term

“drug trafficking crime” as including “any felony punishable under the Controlled

Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and

Export Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act

(46 U.S.C.App. § 1901 et seq.).” 18 U.S.C. 924(c)(2).

      In Simon, we held a drug offense falls within the definition of “drug

trafficking crime” in § 924(c)(2), and thus fits within the definition of aggravated

felony, if two criteria are met: (1) the offense must be punishable under one of the



                                          11
three enumerated statutes, including the Controlled Substances Act (“CSA”); and

(2) the offense must be a felony. Simon, 168 F.3d at 1272. The CSA defines the

term “felony” as “any Federal or State offense classified by applicable Federal or

State law as a felony.” 21 U.S.C. § 802(13).

      In the instant case, the district court did not plainly err in imposing the eight-

level enhancement. As Herrera argues, the record contains virtually no

information about Herrera’s previous conviction. The PSI indicated that the eight-

level enhancement was warranted under § 2L1.2(b)(1)(c), but did not specify

which of Herrera’s previous convictions justified the enhancement. On appeal, the

government explains on appeal that Herrera’s 1988 New York conviction for

criminal possession of a controlled substance constituted an aggravated felony.

The PSI referenced that conviction by indicating that Herrera was found guilty and

sentenced to four years of imprisonment for “Criminal Possession of a Controlled

Substance,” but it did not indicate which New York statute Herrera violated. PSI ¶

25.

      Nevertheless, Herrera’s conviction satisfies the two criteria enumerated in

Simon. First, possession of a controlled substance is an offense punishable under

the CSA. See 21 U.S.C. § 844. Second, Herrera’s conviction was a felony under

New York law because he was sentenced to more than four years of imprisonment.



                                          12
See N.Y. PENAL LAW §§ 55.10, 70.15 (penalties for class A, class B, and

unclassified misdemeanors do not exceed one year). Accordingly, the district court

did not plainly err in applying the enhancement to Herrera’s sentence. See Simon,

168 F.3d at 1272.

      In his brief, Herrera asserts that the conviction for simple possession cannot

qualify as a drug trafficking crime under U.S.S.G. § 2L1.2(b)(1). However, the

conviction was not considered a “drug trafficking offense” under § 2L1.2(b)(1)(A)

or (B), but rather an “aggravated felony” under § 2L1.2(b)(1)(c). See PSI ¶ 10.

Finally, Herrera’s reliance upon the Supreme Court’s recent decision in Shepard,

__ U.S. __, 125 S. Ct. 1254, is misplaced. In Shepard, the Supreme Court held that

a district court considering prior convictions for the purpose of sentencing a

defendant under 18 U.S.C. § 924(e), the career criminal provision, could look to

statutory elements, charging documents, and jury instructions, but not to police

reports or complaint applications, to determine whether an earlier conviction

qualified as a violent felony. Shepard, __ U.S. at __, 125 S. Ct. at 1257. In the

instant case, the district court did not consider any documents that the Supreme

Court deemed to be inappropriate, because, as discussed above, the fact that

Herrera’s previous conviction qualified as an “aggravated felony” for purposes of §

2L1.2 was evident from the nature of the offense and the duration of his



                                          13
imprisonment. Accordingly, the district court did not plainly err in imposing an

eight-level enhancement under § 2L1.2(b)(1)(c).

                               III. CONCLUSION

      While the application of the Guidelines by the sentencing court was done in

a mandatory fashion constituting statutory Booker error, Herrera has failed to

demonstrate a reasonable probability that his sentence would have been different

but for such error. Moreover, a review of the record demonstrates that the

sentencing court did not err in imposing an eight-level enhancement under §

2L1.2(b)(1)(c). Accordingly, we AFFIRM.




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