                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                       ________________________        U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           AUGUST 23, 2005
                             No. 04-16356
                                                          THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 04-00223-CR-T-27MAP

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                  versus

ARNULFO TORREZ OROVIO,

                                                         Defendant-Appellant.

                       ________________________

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

                            (August 23, 2005)


Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:
      Arnulfo Torrez Orovio appeals his 135-month sentence for drug trafficking

while aboard a vessel, in violation of 46 App. U.S.C. § 1903(a), (g), and (j) and 21

U.S.C. § 960(b)(1)(B)(ii). On appeal, Orovio argues that the district court erred by

denying him a role reduction because: (1) he was less culpable than most other

participants and was not a leader, manager, or organizer; and (2) his relevant

conduct was limited to one shipment of cocaine, and not the larger drug

distribution conspiracy. Orivio also argues that the district court erred by simply

imposing the minimum sentence in the guideline range, under a mandatory

guidelines system, without considering the factors listed in 18 U.S.C. § 3553(a), as

is now required under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160

L. Ed. 2d 621(2005).

                            I. Mitigating-Role Reduction

      “[A] district court’s determination of a defendant’s role in the offense is a

finding of fact to be reviewed only for clear error.” United States v. De Varon, 175

F.3d 930, 937 (11th Cir. 1999) (en banc). The proponent of the reduction bears the

burden of proving the mitigating role in the offense by a preponderance of the

evidence. Id. at 939.

      The Sentencing Guidelines permit a court to decrease a defendant’s offense

level by four levels if it finds that the defendant was a “minimal participant” in the



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criminal activity, or by two levels if it finds that the defendant was a “minor

participant” in the criminal activity. U.S.S.G § 3B1.2(a), (b). In determining

whether a mitigating-role reduction is warranted, a district court “should be

informed by two principles discerned from the Guidelines: first, the defendant’s

role in the relevant conduct for which [he] has been held accountable at sentencing,

and, second, [his] role as compared to that of other participants in [his] relevant

conduct.” De Varon, 175 F.3d at 940. “Only if the defendant can establish that

[he] played a relatively minor role in the conduct for which [he] has already been

held accountable - not a minor role in any larger criminal conspiracy - should the

district court grant a downward adjustment for minor role in the offense.” Id. at

944.

       Because the record demonstrates that Orovio (1) was held accountable only

for those drugs that he handled, and (2) failed to show, by a preponderance of the

evidence, that his conduct in steering the boat and throwing the cocaine into the

water rendered him less culpable than other identifiable participants, the district

court did not clearly err by denying his request for a mitigating-role reduction.

                                      II. Booker

       Because Orovio failed to lodge an objection to his sentence based on

Booker, or any constitutional grounds, in the court below, we review for plain error



                                           3
only. See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (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 omitted).

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

guidelines rendered them incompatible with the Sixth Amendment’s guarantee of a

right to a jury trial. Booker, 543 U.S. at ___,125 S. Ct. at 750-56. The Court ruled

that sentencing courts nevertheless must consider the factors set forth in 18 U.S.C.

§ 3553(a) when imposing sentences. Id. at ___, 125 S. Ct. at 765. We have held

that plain error exists where a district court imposes a sentence under the formerly

binding, mandatory guidelines. United States v. Shelton, 400 F.3d 1325, 1330-31

(11th Cir. 2005). We have further held, however, that, in order to prove that the

error affected his substantial rights, the third prong of plain error review, a

defendant must demonstrate “a reasonable probability of a different result if the

guidelines had been applied in an advisory instead of binding fashion by the

sentencing judge in this case.” United States v. Rodriguez, 398 F.3d 1291, 1301



                                              4
(11th Cir. 2005), cert. denied, 125 S. Ct. 2935 (2005). Where “[t]he record

provides no reason to believe any result is more likely than the other,” a defendant

cannot prevail under plain error review. Id.

      Because Orovio has failed to show that there is a reasonable probability that

the district court’s error in sentencing him under a mandatory guideline system

affected the outcome of his sentence, no reversible plain error occurred.

      Accordingly, we affirm Orovio’s sentence.

      AFFIRMED.




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