                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                               May 4, 2005
                             No. 04-12635
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                  D. C. Docket No. 03-80037-CR-DTKH

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

HANRI RASEAN INGRAHAM
a.k.a. Bobby Q. Ingraham,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (May 4, 2005)


Before TJOFLAT, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
        Hanri Rasean Ingraham pleaded guilty to two counts of possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and was

sentenced to eighty-four months’ imprisonment. He argues on appeal that his

sentence is unconstitutional in light of United States v. Booker, 543 U.S. ___, 125

S. Ct. 738 (2005), because his sentence was enhanced as a result of findings made

by the district court that went beyond the facts admitted by him or found by the

jury.

        Because Ingraham did not raise this argument before the district court, our

review is only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298

(11th Cir. 2005). “An appellate court may not correct an error the defendant failed

to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that

affects substantial rights. If all three conditions are met, an appellate court may

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

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

proceedings.” Id. (internal quotations and citations omitted).

        Ingraham met the first two prongs of the plain error test by demonstrating

that the district court committed an error that is plain. See id. at 1298–99. As for

the third prong of the plain error test, Ingraham has the burden of showing that the

error has affected his substantial rights. See id. at 1299. To do this, he must



                                              2
establish that “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.” 1 Id. at 1301.

       There is no evidence in the record to suggest that the district court would

have given Ingraham a lesser sentence had it applied the guidelines in an advisory

instead of binding fashion. As a result, Ingraham has failed to satisfy the third

prong of the plain error test. See id.

       AFFIRMED.




       1
           Ingraham suggests that he need not demonstrate a reasonable probability of a different
result if the guidelines had been applied in an advisory fashion by the district court because,
according to him, the error is “structural” in nature. He argues that, since the error is structural,
the third prong’s substantial rights analysis is automatically met.
         Although not explicitly addressed in our Rodriguez opinion, it is clear that this Court has
rejected the notion that Booker constitutional error is structural. See generally Rodriguez, 398
F.3d at 1291; see also United States v. Rodriguez, ___ F.3d. ___ (11th Cir. Apr. 19, 2005)
(denial of reh’g en banc) (Carnes, J., concurring); but see id. (Tjoflat, J., dissenting).

                                                  3
TJOFLAT, Circuit Judge, concurring specially:

       As I explain in my dissent to the court’s refusal to rehear Rodriguez en banc,

the error in a case such as this—where the district court enhances the defendant’s

sentence on the basis of facts not admitted by the defendant or found by a jury—is

structural error, and the third prong of the plain-error test is, therefore,

inapplicable. See United States v. Rodriguez, — F.3d —, 2005 WL 895174 (11th

Cir. Apr. 19, 2005) (Tjoflat, J., dissenting from the denial of rehearing en banc).

Accordingly, the court should consider whether the error “seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed.2d 508 (1993). The

court declines to do that because, as I agree, it is Rodriguez bound.




                                            4
