                Not for Publication in West's Federal Reporter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. 03-1868

                      UNITED STATES OF AMERICA,

                                 Appellee,

                                      v.

                           MAYRA DIAZ, ETC.,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS


         [Hon. Douglas P. Woodlock, U.S. District Judge]


                                   Before

              Selya, Lipez and Howard, Circuit Judges.



     Tamara A. Barney, by appointment of the court, on brief for
appellant.
     Michael J. Sullivan, United States Attorney, and Susan M.
Poswistilo, Assistant United States Attorney, on brief for
appellee.


                            January 30, 2006
            SELYA, Circuit Judge.             A federal grand jury in the

District of Massachusetts indicted defendant-appellant Mayra Diaz

on various charges.      See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. §

2.    Five other persons were accused in the original indictment,

including Diaz's live-in boyfriend, Santiago Pache.                 After a four-

day jury trial, Diaz was found guilty on two drug-trafficking

counts.     On May 20, 2003, the district court sentenced her to a

151-month    incarcerative       term    (the     bottom    of     the    guideline

sentencing range).      This appeal ensued.

            We need not tarry.          This is a single-issue appeal in

which Diaz asserts that because she was sentenced prior to the

decision in United States v. Booker, 125 S. Ct. 738 (2005), and

under the mandatory guidelines system then in effect, resentencing

is    required.      Diaz   concedes     that     this     claim    of    error   is

unpreserved.       It is, therefore, relegated to plain error review.

See United States v. Guzmán, 419 F.3d 27, 30 (1st Cir. 2005);

United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).

            In order to establish an entitlement to relief under the

plain error standard, an appellant must show "(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected [her] substantial rights, but also (4) seriously impaired

the    fairness,    integrity,     or    public     reputation       of    judicial

proceedings."      United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001).    The first two prongs of the plain error test are satisfied


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where, as here, the sentencing court treated the guidelines as

mandatory rather than advisory.     See Antonakopoulos, 399 F.3d at

75.   Consequently, we proceed directly to the third and fourth

prongs of the test.

            With respect to these prongs, the appellant must show at

a bare minimum that, had the error not occurred, there is a

"reasonable probability" that she would have received a lesser

sentence.    Id.   We have held that in many cases this third-prong

showing will be "sufficient to undermine confidence in the outcome

of the proceeding," id. at 78 (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004)), and, thus, will satisfy the

fourth prong as well.

            In light of the foregoing, the pivotal issue is whether,

but for the then-mandatory nature of the sentencing guidelines, "it

is reasonably likely that the district court would have imposed a

more lenient sentence."   Guzmán, 419 F.3d at 30.   In answering this

question, our reading of the record will neither be pettifogging

nor overly strict.     See United States v. Heldeman, 402 F.3d 220,

224 (1st Cir. 2005).

            In this case, we believe that Diaz has satisfied the

requirements for showing plain error.    The district judge not only

sentenced her to the shortest possible prison term available under

the applicable guideline sentencing range but also characterized

that sentence as "very severe."    In virtually the same breath, the


                                  -3-
judge noted pointedly that "the limits of [judicial] authority

[were] provided by the Sentencing Guidelines."                               He went on to

explain that he was bound to follow the dictates of the Sentencing

Commission and, indirectly, of Congress. These allusions, taken in

context, tend to show a belief that the then-mandatory guidelines

tied the judge's hands.1

              To     cinch      matters,    the    record     reveals        three     special

circumstances that suggest a reasonable likelihood of a lower

sentence      under       an    advisory     guidelines        regime.          First,    the

sentencing          judge      appeared    to     be   sensitive        to     the     abusive

relationship         that      existed     between     Diaz    and   her       codefendant,

Santiago Pache.           While the judge found that this relationship did

not justify a departure based on coercion, see supra note 1, he

nonetheless concluded that the "dysfunctional relationship" placed

Diaz       "under     a     degree   of     duress."          Second,        Diaz's     family

circumstances, especially in relation to the care of her young

child, were immaterial under the mandatory guidelines regime; now,

however, the judge could very well find them compelling.                              Finally,

the judge was sufficiently concerned about Diaz's cognitive ability

and mental health that he ordered the Bureau of Prisons to conduct

a psychiatric evaluation.                 Although the evaluation revealed that


       1
      The judge's statements regarding his denial of Diaz's request
for a downward departure reinforce this view. When handing down
the sentence, he stated trenchantly that his "perception of
intellectual honesty concerning the availability of departures"
constrained him to stay within the guideline sentencing range.

                                             -4-
Diaz was able to proceed to sentencing and to serve a sentence of

incarceration, it confirmed that she suffered from an adjustment

disorder.

            We need go no further.    Because the record, taken as a

whole, indicates that the district court, if acting under an

advisory guidelines system, might well have imposed a more lenient

sentence, we vacate Diaz's sentence and remand for resentencing.

If we have misread the district judge's inclination, it will be

easy enough for him simply to reimpose the same sentence.     At any

rate, that is for the able district judge; for our part, we

intimate no view as to what sentence should be imposed in the

resentencing proceeding.

            The appellant's sentence is vacated and the case is

remanded for resentencing.




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