                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ________

                                     04-2119
                                   __________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
Jesus Jimenez-Gutierrez,               *
                                       *
            Defendant - Appellant.     *
                                  ___________

                            Submitted: January 11, 2005
                                Filed: October 13, 2005
                                  ___________

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

      Jesus Jimenez-Gutierrez pled guilty to conspiring to distribute fifty grams or
more of a mixture or substance containing methamphetamine. At sentencing, he
received a two-level enhancement due to his role in the offense as a manager or
supervisor. The resultant Guidelines range was 188 to 235 months. The district court
sentenced him at the bottom of this range, 188 months.
      On appeal, Mr. Jimenez-Gutierrez alleges error in the district court’s
application of the two-level enhancement. He also alleges error under Blakely v.
Washington, 124 S.Ct. 2531 (2004) and United States v. Booker, 125 S.Ct 738
(2005). “We review the district court’s decision to assess a sentencing enhancement
based upon a defendant's role in the offense for clear error.” United States v.
Johnson, 278 F.3d 749, 752 (8th Cir. 2002). Regarding the Blakely/Booker issue,
because Mr. Jimenez-Gutierrez raised this issue for the first time on appeal, we
review only for plain error. United States v. Pirani, 406 F.3d 543 (8th Cir. 2005).

       For a two-level managerial role enhancement to apply, it is only necessary that
the defendant supervise or manage one other participant. See U.S.S.G. § 3B1.1 cmt.
2 (“To qualify for a [U.S.S.G. § 3B1.1(c)] adjustment . . . the defendant must have
been the . . . manager or supervisor of one or more other participants.”) The record
in this case demonstrates, at a minimum, that Mr. Jimenez-Gutierrez was a
supervisor/contact person at the destination point for a drug courier on an Arizona-to-
Minnesota drug shipment. When officers stopped the courier for speeding in
Missouri and discovered drugs, the courier agreed to cooperate. Her statements
implicated Mr. Jimenez as a supervisor. Also, Mr. Jimenez-Gutierrez’s own actions
showed that he played a supervisory role. The courier cooperated by calling Mr.
Jimenez-Gutierrez to ask for instructions and help. She told Mr. Jimenez-Gutierrez
that her van had broken down. Mr. Jimenez-Gutierrez then traveled from Minnesota
to Missouri, receiving numerous calls from the courier during his trip. When he
arrived at the courier’s van in Missouri, officers arrested him. At the time of his
arrest, he had a plane ticket and travel itinerary for the courier as well as the cell
phone she had called. In addition, he had wired the courier $300 prior to her trip, as
demonstrated by a receipt found in the courier’s van. This evidence is sufficient to
support the district court’s finding that Mr. Jimenez-Gutierrez supervised the courier.

      Regarding the Blakely/Booker issue, the district court understandably treated
the Guidelines as mandatory at Mr. Jimenez-Gutierrez’s May 2004 sentencing. We

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now know that this was error. In Pirani, 406 F.3d at 552, we stated that a
Blakely/Booker error affects a defendant’s substantial rights and may be plain error
if the defendant can show a reasonable probability that the district court would have
granted a more favorable sentence had it treated the Guidelines as advisory.

       In this case, the district court sentenced Mr. Jimenez-Gutierrez at the bottom
of the Guidelines range. Also, the district court made repeated statements at
sentencing to explain its dissatisfaction with Mr. Jimenez-Gutierrez’s Guidelines
sentence. The district court was primarily dissatisfied with the discrepancy between
the sentence imposed upon the courier, twenty-four months, and the minimum
sentence available for Mr. Jimenez-Gutierrez, 188 months. Counsel for Mr. Jimenez-
Gutierrez raised the issue of the discrepancy, and the district court asked the
government how it justified such a discrepancy. The government stated that the
courier had not brought drugs into the United States. In response to this comment,
the district court stated, “There’s no evidence that he [Mr. Jimenez-Gutierrez] brought
drugs into the country. There’s evidence that he arranged this transportation of these
drugs.” The government then claimed that Mr. Jimenez-Gutierrez had arranged
multiple other instances involving the transportation of drugs. The district court
responded, “That is not before the court.”

        The district court later stated, “And the question is, that is a large discrepancy
for people who were basically involved in exactly the same conspiracy with exactly
the same drugs with exactly the same purity with slightly different roles.” The district
court then noted that the long sentence for Mr. Jimenez-Gutierrez and the downward
departure for the courier resulted in “a very generous reward to her or an unduly
punitive award to him.” Next, the district court stated, “[i]t is hard, though, to argue
that it in any way promotes the idea of uniformity in sentencing, which is what the
[G]uidelines were intended to achieve. . . . It does not promote uniformity. There are
wildly varying levels of departures for the courts, and for every [United States
Attorney] in the country.” The discussion continued and the district court continued

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to express dissatisfaction with the lack of discretion available in sentencing. The
district court concluded:

      I wonder what would happen if the judges routinely just said no
      downward departures, period. You can ask for them, but the judges say
      no. It would be interesting to see what would happen under those
      circumstances. Given the punitiveness of the [G]uidelines, sometimes
      it’s very difficult. In an attempt to, in fact, do justice, we find ourselves
      in a Catch-22. Regardless of what we do, there is an element of injustice
      in it, and I think this case is a good demonstration of the element of
      injustice in it. Not that Mr. Jimenez didn’t get what he deserved, but
      Ms. Salinas probably didn’t get what she deserved through the
      generosity of the government.
              ...
      I have given the defendant the low end of the [G]uideline, given the very
      punitive nature of the [G]uidelines. It is more than sufficient to deter the
      defendant and those like him from entering the United States to engage
      in drug conduct, drug conspiracy conduct.

       We held in Pirani that a sentence at the bottom of the Guidelines range,
standing alone, is insufficient to demonstrate a reasonable probability that the district
court would have imposed a more favorable sentence under an advisory regime.
Pirani, 406 F.3d at 553. We also stated that a district court’s expression of a general
dissatisfaction with the Guidelines fails to demonstrate the required reasonable
probability of a lesser sentence. Id. at 553 n.6. In contrast, a district court’s
statements specific to a sentence actually imposed are relevant to the prejudice
inquiry. Id.; United States v. Rodriguez-Ceballos, 407 F.3d 937, 941 (8th Cir. 2005).

       Applying these rules, we see that the record in this case is mixed. The district
court spoke generally about the Guidelines and specifically about the sentence.
Speaking generally, the district court stated that it believed a system that allowed for
such large discrepancies was unjust. Speaking about the sentence actually imposed,
the district court emphasized that the present case was an example of what it believed

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to be unjust. The district court, in fact, sentenced Mr. Jimenez-Gutierrez at the
bottom of the Guidelines range and expressly stated that it believed the Guidelines
to be “very punitive,” that the sentence imposed on Mr. Jimenez-Gutierrez might be
an “unduly punitive award to him,” and that the sentence it felt bound to impose was
“more than sufficient to deter the defendant.” On the other hand, the district court
stated, “not that Mr. Jimenez didn’t get what he deserved.”

       Taken together, we believe that the bottom-of-the-range sentence and the
district court’s statements are sufficient to show a reasonable probability that the
district court would have imposed a lesser sentence under an advisory Guidelines
regime. In this regard, we note that the plain error standard for relief expressed in
United States v. Olano, 507 U.S. 725, 731 (1993), and applied in Pirani is difficult but
not impossible for defendants to satisfy. A reasonable probability does not mean
certainty. In fact, it does not even equate to proof by a preponderance of the
evidence. See United States v. Dominguez Benitez, 124 S.Ct. 2333, 2340 n.9 (2004)
(describing the plain error standard and noting that, “The reasonable-probability
standard is not the same as, and should not be confused with, a requirement that a
defendant prove by a preponderance of the evidence that but for error things would
have been different.”); see also, Kyles v. Whitley, 514 U.S. 419, 434 (1995) (stating
that, the “touchstone . . . is a ‘reasonable probability’ of a different result, and the
adjective is important. The question is not whether the defendant would more likely
than not have received a different verdict.”). Because the reasonable probability
standard is not the same as a preponderance of the evidence standard, we need not
determine whether it was more likely that the district court wanted to impose a lesser
sentence on Mr. Jimenez Gutierrez or a greater sentence on the courier. The district
court’s language in this case leaves open the reasonable probability that either or both
outcomes were desired. The record in this case is sufficient for Mr. Jimenez-
Gutierrez to make the requisite showing under Pirani.




                                          -5-
       Because there is a reasonable probability that Mr. Jimenez-Gutierrez would
have received a lesser sentence under an advisory regime, we must determine whether
the fourth Olano factor is satisfied, i.e., whether the error “seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at
732. We believe that this final factor is satisfied by the fact that the sentence Mr.
Jimenez-Gutierrez received may be much longer than what the district court would
have imposed under an advisory Guidelines regime. Rodriguez-Ceballos, 407 F.3d
at 941.

       We affirm as to the two-level enhancement but vacate the sentence and remand
for re-sentencing in light of Booker.

COLLOTON, Circuit Judge, concurring.
       As the court recounts, the record in this case shows that the district court
granted a substantial sentence reduction to Linda Salinas, based on her provision of
substantial assistance in the investigation and prosecution of others, and then
expressed frustration that Jesus Jimenez-Gutierrez, who provided no such assistance,
was subject to a much lengthier term of imprisonment under the then-mandatory
sentencing guidelines. It seems to me that there is a substantial question whether a
district court may, in essence, create a “sentence disparity” by granting a reduction
under the now-advisory guidelines to one defendant based on the provision of
substantial assistance, and then “reasonably,” within the meaning of United States v.
Booker, 125 S. Ct. 738 (2005), vary from the advisory guidelines based solely on this
“disparity” when sentencing another defendant who declined an opportunity to
provide such assistance. Congress clearly thought it appropriate that defendants who
provide substantial assistance should receive lower sentences than would otherwise
be imposed, see 28 U.S.C. § 994(n); 18 U.S.C. § 3553(e), so it is difficult to conclude
that Congress at the same time believed that such reductions in sentence would cause
“unwarranted sentence disparities” that need to be avoided. See 18 U.S.C.
§ 3553(a)(6). But given the “mixed” record, I accept the court’s conclusion that there

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is a “reasonable probability” that the district court, if aware of Booker, would have
preferred to reduce Jimenez-Gutierrez’s sentence on the basis of a perceived
“sentence disparity.” And our precedent holds that the fourth prong of plain error
analysis does not entail consideration of whether the proffered reason for a more
favorable sentence would be reasonable with regard to 18 U.S.C. § 3553(a). Cf.
United States v. Betterton, 417 F.3d 826, 833-36 (8th Cir. 2005) (Hansen, J.,
concurring). Therefore, I concur in the decision to remand this case for resentencing,
although the ultimate result may be imposition of the same sentence.
                       ______________________________




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