                                                             [DO NOT PUBLISH]
                                Revised Opinion

               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                                JUNE 27, 2005
                                No. 04-12690                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                  D.C. Docket No. 02-00061-CR-4-RH-WCS-1

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

      versus

VINCENT GAINES, JR.,

                                                             Defendant-Appellant.
                         __________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________
                               (June 27, 2005)

Before HULL, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

      Defendant-Appellant Vincent Gaines pleaded guilty without a written plea

agreement to four counts of mail fraud, in violation of 18 U.S.C. § 1341.

According to the factual resume, Gaines and codefendant Edwin Jacquet
submitted internet requests totaling $98,053.43 to the Florida Bureau of

Unclaimed Property in the names of Leonard and Rhonda Cohn. The Bureau

mailed the proper forms to an address in Florida, and the defendants mailed the

completed forms to the Bureau along with photo identification in the Cohns’

names. The Bureau then prepared the checks and mailed them to the Florida

address. The defendants subsequently filed a similar claim under the name of

William Harding. The check in Harding’s name was sent to Florida, and then to a

private mailbox facility in New York. When Gaines and Jacquet attempted to

retrieve the check from the facility in New York, they were arrested. After Gaines

was released on bail, he absconded and failed to appear before the court in New

York. He eventually was re-arrested in New York on unrelated state charges.

      In preparing a presentence investigation report (“PSI”), the probation officer

recommended that the base level be increased for, inter alia, obstruction of justice

under U.S.S.G. § 3C1.1 because Gaines absconded while on pretrial supervision.

The probation officer further noted that a reduction for acceptance of

responsibility, U.S.S.G. § 3E1.1, was not warranted because Gaines had obstructed

justice. With an adjusted offense level of 22 and a criminal history category IV,

Gaines’s guidelines range was 63 to 78 months imprisonment.




                                          2
      Gaines objected, inter alia, to the failure to recommend a reduction for

acceptance of responsibility because, even though he absconded, he had

cooperated since his re-arrest. The government noted, however, that Gaines

currently was refusing to provide information on an unrelated offense. The court

overruled the objection, finding that the reduction was not warranted because

(1) Gaines had absconded; (2) he had given false information to the police and the

court when he was arrested; and (3) although he had provided information on his

offenses, he had refused to cooperate with information on an unrelated offense.

The court acknowledged that Gaines’s failure to cooperate with the additional

information impacted its decision to deny the reduction, although it was not

dispositive. The district court sentenced Gaines to fifty-two months imprisonment

on each count, to be served concurrently to each other, and consecutively to an

eighteen-month sentence imposed by a court in New York. The court also ordered

restitution in the amount of $98,053.43. Gaines now appeals, arguing that (1) he

was entitled to a reduction for acceptance of responsibility, and (2) his sentence is

unconstitutional under Blakely v. Washington, – U.S. –, 124 S.Ct. 2531, 159

L.Ed.2d 403 (2004) and United States v. Booker, 543 U.S. –, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005).

      A. Acceptance of Responsibility

                                          3
      Gaines argues that the district court erred in denying a reduction for

acceptance of responsibility based solely on his refusal to provide information on

an unrelated offense.

      We review de novo the district court’s interpretation and application of the

sentencing guidelines, and review the district court’s factual findings related to the

imposition of sentencing enhancements for clear error. United States v. Amedeo,

370 F.3d 1305, 1312 (11th Cir. 2004) (citations omitted). “A district court’s

determination that a defendant is not entitled to acceptance of responsibility will

not be set aside unless the facts in the record clearly establish that a defendant has

accepted personal responsibility.” Id. at 1320-21. The district court is in the

“unique position” to determine whether a defendant has accepted responsibility.

United States v. McPhee, 108 F.3d 287, 289 (11th Cir. 1997).

      Section 3E1.1(a) of the Sentencing Guidelines provides: “[i]f the defendant

clearly demonstrates acceptance of responsibility for his offense, decrease the

offense level by 2 levels.” The defendant may be entitled to an additional one-

level reduction under certain circumstances and upon a motion by the government

“if the defendant has assisted authorities in the investigation or prosecution of his

own misconduct by timely notifying authorities of his intention to enter a plea of

guilty, . . . .” U.S.S.G. § 3E1.1(b).

                                           4
      The Guidelines further provide that “[c]onduct resulting in an enhancement

under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily

indicates that the defendant has not accepted responsibility for his criminal

conduct.” U.S.S.G. § 3E1.1, comment. (n. 4); see also Amedeo, 370 U.S. at 1321.

However, there may be extraordinary circumstances that enable the court to apply

the § 3E1.1 reduction despite the obstruction-of-justice enhancement. U.S.S.G.

§ 3E1.1, comment. (n.4).

      Here, in determining that Gaines was not entitled to a reduction for

acceptance of responsibility, the district court considered, among other factors,

Gaines’s refusal to provide information concerning criminal conduct by another

unrelated to his offenses. Thus, the issue in this case is whether criminal conduct

by a person other than the defendant, and unrelated to the offenses of conviction,

can form the basis for a denial of acceptance of responsibility.

      This court has held that a defendant cannot be penalized for “refusing to

cooperate with the government in a criminal investigation unrelated to the offense

for which the defendant is to be sentenced.” United States v. Burgos, 276 F.3d

1284, 1285 (11th Cir. 2001) (concluding that there was no legitimate purpose in

penalizing the defendant for her refusal to cooperate with an investigation against




                                          5
another individual for conduct unrelated to her offenses);1 see also McPhee, 108

F.3d at 289-90 (vacating and remanding the denial of an additional one-point

reduction for acceptance of responsibility after the defendant had received a two-

level reduction for his acceptance because “any obstructionist conduct following

the guilty plea,” such as his attempted escape, was irrelevant).

        Although we conclude that the district court’s consideration of Gaines’s

refusal to cooperate on an unrelated offense was improper, the court indicated that

this factor was not dispositive in its decision to deny the reduction. Thus, we turn

to whether, considering other factors, the district court’s decision to deny the

reduction was clearly erroneous. After reviewing the record, we conclude that it

was not.

        The district court explained that the reduction was not warranted because

Gaines had absconded from pre-trial detention and he had lied to authorities.

These same facts led the court to enhance Gaines’s sentence for obstruction of

justice. Under this court’s caselaw, once a defendant receives an enhancement for

obstruction of justice, he is precluded from receiving a reduction for acceptance of




        1
          Although the Burgess case addressed the district court’s consideration of a defendant’s
cooperation in the context of relevant conduct, the court’s decision is instructive on the consideration
of such conduct for enhancements and reductions in general.

                                                   6
responsibility absent “extraordinary circumstances.” See Amedeo, 370 F.3d at

1320-21 (citing U.S.S.G. § 3C1.1, comment. (n.4)).

         Although the guidelines do not clarify what constitutes “extraordinary

circumstances,” something more than agreeing to plead guilty and providing

information is required. If simply meeting the requirements of § 3E1.1 was all that

was required, then the guidelines would not indicate that “exceptional

circumstances” were necessary to receive a reduction when the defendant had

received an enhancement for obstruction of justice. Thus, even had the district

court not considered the post-guilty plea refusal to cooperate, the court’s

conclusion that Gaines did not qualify for a reduction is entitled to deference.

         B. Booker

         Gaines argues that his sentence is unconstitutional in light of

Booker because he did not admit the facts surrounding his sentencing

enhancements, and those facts were not proven to a jury beyond a reasonable

doubt.

         When a defendant fails to object to an error before the district court, this

court reviews the argument for plain error. United States v. Hall, 314 F.3d 565,

566 (11th Cir. 2002); see also United States v. Olano, 507 U.S. 725, 731-32, 113

S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). To establish plain error, Gaines must

                                             7
show “(1) there is an error; (2) that is plain or obvious; (3) affecting the

defendant’s substantial rights in that it was prejudicial and not harmless; and (4)

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

proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert.

denied, – S.Ct. – (No. 04-1148) (June 20, 2005).

      In Booker, the Supreme Court applied the Blakely decision to the Federal

Sentencing Guidelines, holding that the mandatory nature of the federal guidelines

rendered them incompatible with the Sixth Amendment’s guarantee to the right to

a jury trial. 125 S.Ct. at 749-52. The Court explicitly reaffirmed its rationale first

pronounced 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.” Booker, 125 S.Ct. at 756. The

Court , however, explained that although the guidelines were advisory only, courts

should consider the guidelines in addition to the sentencing factors in 18 U.S.C.

§ 3553(a), in determining a reasonable sentence. 125 S.Ct. at 764.

      Accordingly, after Booker, this court has recognized two types of

Booker errors: constitutional errors arising from the use of extra-verdict




                                            8
enhancements and statutory errors arising from the application of the guidelines as

mandatory. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).

       Although the district court’s use of extra-verdict enhancements is an error

that is plain, see Rodriguez, 398 F.3d at 1298-99, Gaines does not meet the high

burden presented by the third prong of the plain error test: he cannot show that his

substantial rights were affected. To be entitled to relief, Gaines must show that his

sentence would have been different but for the mandatory application of the

guidelines. Id. at 1301. Here, the district court gave no indication that it would

have sentenced Gaines differently had it known the guidelines were advisory

only.2 Where the district court is silent on this issue, an appellant cannot meet this

burden. Thus, Gaines cannot show plain error in his sentence.3

       Accordingly, we AFFIRM Gaines’s sentence.




       2
         After Booker, the court is still required to consider the guidelines enhancement provision,
and it does so based on the same set of facts previously before it. Rodriguez, 398 F.3d at 1301.
       3
          Moreover, any argument that there was statutory error fails for the same reason. See
Shelton, 400 F.3d at 1330-32.

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