                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  __________

                                     03-2263
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the Eastern
                                       * District of Missouri.
Juan Francisco Gonzalez, also known    *
as Michael Andrew Quinones,            *        [UNPUBLISHED]
                                       *
            Defendant - Appellant.     *
                                  ___________

                        Submitted: February 28, 2006
                            Filed: July 18, 2006
                                  ___________

Before RILEY, RICHARD S. ARNOLD,1 and MELLOY, Circuit Judges.
                            ___________

PER CURIAM.

       We affirmed the criminal conviction and life sentence imposed upon Juan
Francisco Gonzalez in an earlier opinion. United States v. Gonzalez, 365 F.3d 656
(8th Cir. 2004). The Supreme Court then granted certiorari based on sentencing issues


      1
       The Honorable Richard S. Arnold died on September 23, 2004. This opinion
following remand from the Supreme Court is filed by the remaining judges of the
original panel. See 8th Cir. R. 47E.
under Blakely v. Washington, 542 U.S. 296 (2004). After the Supreme Court issued
its opinion in United States v. Booker, 543 U.S. 220 (2005), the Court vacated our
judgment and remanded for reconsideration in light of Booker.2 We now affirm.

       Our review under Booker is for plain error because Gonzalez did not raise the
Blakely issue below. Because the district court made factual findings and
understandably applied the Guidelines as mandatory, there was error. Under our plain
error test, we consider Booker error to have affected a defendant’s substantial rights
only if the existing record demonstrates a “reasonable probability” that the district
court would have imposed a lesser sentence under an advisory regime. United States
v. Pirani, 406 F.3d 543, 551 (8th Cir. 2005). The defendant bears the burden of
proving plain error. Id. at 550. If the record is ambiguous or if we are forced to
speculate as to what might have happened under an advisory regime, then the
defendant has not met his burden. Id. at 553 (“‘[W]here the effect of the error on the
result in the district court is uncertain or indeterminate-where we would have to
speculate-the appellant has not met his burden of showing a reasonable probability
that the result would have been different but for the error.’”) (quoting United States
v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)).

      In calculating the then-mandatory Guidelines range, the district court applied
enhancements, including an enhancement for a leadership role, and arrived at a
Guidelines offense level of forty-four. The district court also found that Gonzalez had
a category one criminal history and described this history as “a curiosity” in that
Gonzalez was “so heavily involved in a drug trafficking enterprise” and yet had no


      2
       As to the issues unrelated to sentencing that we decided in our prior opinion,
including Fourth Amendment issues, issues related to Spanish language translations,
and the sufficiency of the evidence, we affirm the judgment of the district court for the
reasons set forth in our prior opinion. The Supreme Court granted certiorari as to
sentencing issues and remanded with specific reference to Booker. As such, we find
no basis for disturbing our prior rulings on these other issues.

                                          -2-
juvenile or adult criminal record. As noted by the district court, the applicable
Guidelines range was not a range, but a mandate of life imprisonment. The district
court expressly commented on the lack of discretion afforded by the Guidelines in this
case, saying, “Under the United States Sentencing Guidelines, the only sentence that
the Court has available is life imprisonment.” We interpret these comments as neutral
observations on the practical realities of the case rather than expressions of a desire
to sentence Gonzalez to a term of years.

       Elsewhere, the district court appeared sympathetic. The sentencing judge read
into the record letters of support written on behalf of Gonzalez, noted that the letters
had made an impression, and stated, “I make these comments on the record as some
support for you as you proceed down a monstrously difficult road.” These comments
however, were countered by other statements from the district court regarding the
propriety of a life sentence and the impact of Gonzalez’s crime on numerous victims.
The district court stated:

      As I heard the testimony in this case, I was stricken by several things.
      One, the enormous amount of drugs that were involved. The grief that
      was imposed upon so many people. The lives of so many other people
      that testified here that were irrevocably changed by this conduct which
      you led as an organizer. And while people generally who get involved
      in these things must take responsibility for themselves and they can’t
      blame it all on you, clearly, you had a – role in that activity insofar as
      they were concerned.

      The other thing I observed in that trial was from you personally. In
      listening to the wiretaps evidence, in hearing the testimony, I kept trying
      to determine how it was that you got involved in this in the first place,
      and I’ll probably never have the answer to that question. The letters
      refer to you as being very intelligent, which I absolutely believe that you
      are, and I suppose my only wish is that somehow it would be possible for
      the time to be reversed and that another path could have been chosen by
      you, but that’s really not my role to decide.


                                          -3-
      Based upon the serious nature of the instant offense which involved a
      conspiracy to distribute and possession with intent to distribute cocaine
      and marijuana and in consideration of Defendant’s leadership role in the
      instant offense, a sentence of life imprisonment would seem to address
      sentencing objectives of just punishment, general deterrence, and
      incapacitation.

       Even if we were to read these statements by the district court in a light favorable
to Gonzalez, we find that they establish, at most, ambiguity. The court clearly
understood that numerous supporters thought highly of Gonzalez, and the court itself
viewed Gonzalez as an intelligent man who made unfortunate choices that led to
extensive criminal activity. The court nevertheless was impressed with the scale of
the criminal enterprise and the substantial impact of the crimes on numerous lives and
stated that it viewed a life sentence as appropriate. Because these comments establish
at most ambiguity and not a reasonable probability that the district court would have
imposed a term of years under an advisory regime, we must allow the sentence to
stand. Pirani, 406 F.3d at 553.

      The judgment of the district court is affirmed.
                     ______________________________




                                           -4-
