                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                      FOR THE ELEVENTH CIRCUIT
                       ________________________                       FILED
                                                            U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 04-15943                    November 28, 2005
                             Non-Argument Calendar             THOMAS K. KAHN
                           ________________________                  CLERK

                    D. C. Docket No. 03-00459-CR-T-17-TBM


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

GILBERTO SERNA CASTRO,

                                                               Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________
                             (November 28, 2005)


Before ANDERSON, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

      Gilberto Serna Castro appeals his convictions and concurrent 108-month

sentences for conspiracy to possess with the intent to distribute 5 kilograms or
more of cocaine while aboard a vessel subject to U.S. jurisdiction, in violation of

46 App. U.S.C. § 1903(j), and possession with the intent to distribute 5 kilograms

or more of cocaine while aboard a vessel subject to U.S. jurisdiction, in violation of

46 App. U.S.C. § 1903(a) and (g), and 21 U.S.C. § 960(b)(1)(B)(ii). Castro appears

to argue that the district court violated his Sixth Amendment rights by calculating

his sentence based on facts that neither were contained in his indictment nor

admitted during his guilty plea hearing. Castro’s sentence was enhanced because of

the amount of cocaine involved. The cocaine quantity (at least 150kg) was

included in the Presentence Investigation Report (“PSI”). Castro argues that relying

on this fact violated his Sixth Amendment rights as explained in United States v.

Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi

v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      In Booker, the Supreme Court explicitly reaffirmed the rule 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, 543 U.S. at ___, 125 S.Ct. at 756 (citing

Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63). The Supreme Court held that the

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Federal Sentencing Guidelines violate the Sixth Amendment right to a jury trial to

the extent that they permit a judge to increase a defendant’s sentence based on facts

that are neither found by a jury nor admitted by the defendant. Id. at ___, 125 S.Ct.

at 746-56.

       In Booker, the Supreme Court also held that the mandatory nature of the

Federal Sentencing Guidelines rendered them incompatible with the Sixth

Amendment’s guarantee to the right to a jury trial. Booker, 543 U.S. at ___, 125

S.Ct. at 749-52. In a second and separate majority opinion, the Court in Booker

“excised” certain sections of the Sentencing Guidelines, thereby effectively

rendering them advisory only. Id. at ___, 125 S.Ct. at 764. The Supreme Court

noted, however, that courts must continue to consult the Guidelines, together with

the factors listed in 18 U.S.C. § 3553(a).1 Id.

       We have explained that there are two types of Booker error: (1) Sixth

Amendment error based upon sentencing enhancements neither admitted by the

defendant nor submitted to a jury and proven beyond a reasonable doubt; and (2)

statutory error based upon sentencing under a mandatory Guidelines system.



       1
          These factors include, inter alia, the nature and circumstances of the offense, the history
and characteristics of the defendant, the need for adequate deterrence, protection of the public,
the pertinent Sentencing Commission policy statements, and the need to avoid unwarranted
sentencing disparities. See 18 U.S.C. § 3553(a).

                                                  3
United States v. Shelton, 400 F.3d 1325, 1329-31 (11th Cir. 2005).

      Because Castro did not raise a Booker claim in the district court, we review

his case for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir.), cert. denied, 125 S.Ct. 2935 (2005). An appellate court may not correct an

error that the defendant failed to raise in the district court unless there is “(1) error,

(2) that is plain, and (3) that affects substantial rights.” Id. (quotation omitted).

The third prong of the plain error test requires:

      that an error have affected substantial rights, which almost always
      requires that the error must have affected the outcome of the district
      court proceedings. The standard for showing that is the familiar
      reasonable probability of a different result formulation, which means a
      probability sufficient to undermine confidence in the outcome.


Id. at 1299 (quotations, citation, and alterations omitted). Regarding the third

prong, “it is the defendant rather than the government who bears the burden of

persuasion with respect to prejudice.” Id. (quotation and alteration omitted). “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. at 1298 (quotation

omitted).

      Constitutional Booker Error



                                            4
      The first question is whether the district court even committed error, the first

prong of the plain error inquiry. Castro asserts that the district court improperly

enhanced his sentence based on facts that were neither found by a jury nor admitted

by Castro. He objects to the enhancement of his sentence based on the quantity of

cocaine, which was included in the PSI. If Castro admitted the drug quantity, then

there was no error in using this fact in sentencing. The government contends that

Castro admitted to the drug quantity by not objecting to the PSI. See United States

v. Burge, 407 F.3d 1183, 1191 (11th Cir. 2005) (rejecting appellant’s Booker

challenge because appellant admitted the facts regarding his conduct by

abandoning at sentencing his objections to various factual statements in the PSI),

petition for cert. filed, (U.S. July 27, 2005) (No. 05-56011); Shelton, 400 F.3d at

1330. At sentencing, however, Castro also stated that he was not admitting any of

the facts in the PSI, albeit after the district court already had adopted the facts of

the PSI without objection.

      It is not necessary for this court to determine whether Castro admitted to the

drug quantity because even if the district court erred, Castro fails on the third prong

of the plain error inquiry. Castro’s claim cannot succeed unless the error affected

his substantial rights. Castro has not satisfied his burden to show that the error

affected his substantial rights. The likelihood of a different result is purely

                                            5
speculative without a clear statement or sign from the district court that, but for the

mandatory Guidelines, the court would have imposed a lighter sentence. See

Rodriguez, 398 F.3d at 1301. Here, the record does not contain such evidence.

Thus, the district court did not plainly err in sentencing Castro based on the higher

drug quantity.

      Statutory Booker Error

      Although Castro failed to argue it clearly, we will review the statutory error

for plain error. The district court committed an error that was plain by treating the

Guidelines as mandatory. See Booker, 543 U.S. at ___, 125 S.Ct. at 749-52.

However, the district court did not comment on whether it would have imposed a

different sentence under an advisory Guidelines system. Although the district court

judge sentenced Castro at the bottom-end of the Guideline range, a sentence at the

low end of the Guidelines range, alone, is insufficient to satisfy the burden of

proving that the error affected a defendant’s substantial rights. See United States v.

Fields, 408 F.3d 1356, 1361 (11th Cir. 2005) (under plain-error review, holding

that the fact that the defendant was sentenced to the bottom of the mandatory

Guideline range, without more, is insufficient to satisfy the third prong’s

requirement that the defendant show a reasonable probability of a lesser sentence

under an advisory Guidelines system), petition for cert. filed, (U.S. June 29, 2005)

                                           6
(No. 05-5157). As discussed above, the district court judge did not make any

statements indicating that she would have imposed a lower sentence had the

Guidelines been merely advisory. Thus, Castro cannot satisfy his burden of

proving that the error affected his substantial rights under the third prong of the

plain-error test because he cannot show that the error “affected the outcome of the

district court proceedings.” See Rodriguez, 398 F.3d at 1299. Accordingly, we

affirm the district court.

      AFFIRMED.




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