                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 04-16665                   JANUARY 9, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                  CLERK
                         ________________________

                    D. C. Docket No. 04-20187-CR-DMM

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                    versus

ROBERTO SALVIA,

                                                          Defendant-Appellant.


                         ________________________

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

                               (January 9, 2006)


Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Roberto Salvia appeals his 18 month-sentence for conspiracy to steal
computer components of value in excess of $1,000, in violation of 18 U.S.C.

§ 659, and restitution order in the amount of $536,302.35. Salvia raises four

arguments and we address each in turn.

                                           I.

      First, Salvia argues that the district court erred in ordering restitution when

the plea agreement and the indictment did not mention restitution. Salvia contends

that the court’s determination of restitution in excess of $500,000 prevented him

from entering a knowing and voluntary plea because the restitution amount

resulted in a 12-level sentence enhancement. Salvia argues that the restitution

should be struck because it was not contemplated within the parties’ understanding

in the plea agreement, or, alternatively, he should only be held responsible for an

amount between $1,000 and $2,000.

      The taking of a guilty plea is governed by Rule 11. Fed. R. Crim. P. 11. We

review a Rule 11 violation for plain error when, as here, the defendant did not raise

any Rule 11 issue before the district court. United States v. James, 210 F.3d 1342,

1343 (11th Cir. 2000). Any error must be plain, affect substantial rights and

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

proceedings. United States v. Hansen, 262 F.3d 1217, 1248 (11th Cir. 2001). Rule

11 enumerates several requirements of the district court before accepting a guilty



                                            2
plea, including informing the defendant of “the court’s authority to order

restitution.” Fed. R. Cim. P. 11(b)(1)(K). Rule 11 further states that “a variance

from the requirements of this rule is harmless error if it does not affect substantial

rights.” Fed. R. Cim. P. 11(h).

      We traditionally have assumed reversible plain error was shown when the

district court failed entirely to address a core Rule 11 concern, which includes

ensuring that: (1) the guilty plea is voluntary; (2) the defendant understands the

nature of the charges; and (3) the defendant understands the consequences of his

plea. United States v. Bell, 776 F.2d 965, 968 (11th Cir. 1985). Recently, the

Supreme Court formulated the standard for determining whether a Rule 11 error

affects a defendant’s substantial rights, holding that:

      a defendant who seeks reversal of his conviction after a guilty plea, on
      the ground that the district court committed plain error under Rule 11,
      must show a reasonable probability that, but for the error, he would
      not have entered the plea. A defendant must thus satisfy the judgment
      of the reviewing court, informed by the entire record, that the
      probability of a different result is 'sufficient to undermine confidence
      in the outcome' of the proceeding.

United States v. Dominguez Benitez, 542 U.S. 74, ___, 124 S.Ct. 2333, 2340,

159 L.Ed.2d 157 (2004). Under this standard, we must examine the entire

proceedings, not just the plea hearing, to assess the effect of the Rule 11 error on

the defendant’s decision to plead. Id. at ____, 124 S.Ct. at 2338-41.



                                           3
       Assuming arguendo that Salvia is not otherwise procedurally barred from

challenging the district court’s action in this respect,1 Salvia cannot demonstrate

that the court committed reversible plain error. As the government concedes, the

district court’s failure to inform Salvia at the plea hearing of the court’s ability to

impose a restitution order violated the requirement of Rule 11 and constituted error

that was plain. See United States v. Morris, 286 F.3d 1291, 1293-94 (11th Cir.

2002) (holding that the court erred in failing to inform the defendant that it could

impose restitution but that the error did not affect the defendant’s substantial rights

because the court informed the defendant that it could impose a maximum fine of

an amount higher than the restitution amount imposed).

       Salvia, however, cannot demonstrate that this error affected his substantial

rights. Although he was not expressly informed in the plea agreement or at the

plea hearing that restitution may be imposed, the Presentence Investigation Report

(“PSI”) stated that 18 U.S.C. § 3663A and the guidelines required that restitution

be ordered. Salvia filed written objections to the restitution amount and to the

PSI’s determination of his ability to pay restitution, but did not contest the fact that



       1
         Because the government did not refer expressly to the invited error doctrine, we express
no opinion as to whether Salvia’s statement in his objections to the PSI that “we respectfully
request this Court order restitution” bars him from challenging the district court’s restitution
order. See United States v. Silvestri, 409 F.3d 1311, 1327-28 (11th Cir. 2005) (stating that “a
party may not challenge as error a ruling or other trial proceeding invited by that party”).

                                                4
restitution should be awarded. In fact, Salvia stated “we respectfully request this

Court order restitution but defer as to the amount of restitution to be paid.”

       Furthermore, at sentencing, Salvia argued extensively about the calculation

of the amount of loss and restitution, but stated that “we concede that there should

be a restitution amount,” and later clarified that he was “not asking to avoid the

restitution altogether.” After the court stated that it was “obligated under the recent

case law to set a restitution amount,” Salvia’s counsel stated that he was “confident

that the Court has to order restitution at this time.” These comments clearly

indicate that Salvia knew before and during sentencing that the court could order

restitution, and that Salvia even conceded that the court should order restitution.

With this knowledge, Salvia never attempted to withdraw his guilty plea before

sentencing, and still has not attempted to withdraw his plea.2 Despite the evidence

in the record that Salvia was aware of the court’s authority to order restitution and

the fact that he bears the burden of proof under the plain error standard, Salvia has

not pointed to any evidence in the record demonstrating that he would not have

entered a guilty plea but for the court’s Rule 11 error. Thus, Salvia’s substantial

rights were not affected by the court’s error and there is no reversible plain error.


       2
        He also did not ask the district court to rescind its acceptance of the plea agreement.
See United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999) (stating that a district court’s
acceptance or rejection of a plea agreement is not final until after the court has had the
opportunity to consider the PSI).

                                                5
                                             II.

       Next, Salvia argues that his enhanced sentence based on judicial fact

findings regarding the amount of loss and restitution violates United States v.

Booker, 543 U.S. ___, 125 S.Ct. 738,160 L.Ed.2d 621 (2005). Salvia argues that

this error was not harmless because it increased his term of imprisonment and

created a financial obligation of over $500,000. Salvia contends that the district

court mistakenly believed that the determination of the amount of loss would not

affect his sentence.

       Because Salvia did not object to his sentence under Blakely v. Washington,

542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), or raise any other similar

constitutional objection to judicial fact finding at the district court, we review for

plain error. United States v. Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005). We

“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.” United States v. Rodriguez, 398 F.3d

1291, 1298 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005) (quotations and

citations omitted).



                                              6
      In Apprendi v. New Jersey, 530 U.S. 224, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), the Supreme Court held that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id.

at 490, 120 S.Ct. at 2362-63. The Supreme Court revisited Apprendi in Blakely

and clarified that “the ‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant. . . . In other words the relevant ‘statutory

maximum’ is not the maximum sentence a judge may impose after finding

additional facts, but the maximum he may impose without any additional

findings.” Blakely, 542 U.S. at ____, 124 S.Ct. at 2537 (emphasis added).

      In Booker, issued after Salvia was sentenced, the Supreme Court held that

the holding in Blakely applies to the federal sentencing guidelines. Booker, 543

U.S. at ____, 125 S.Ct. at 755. Thus, the Sixth Amendment is violated by the

imposition of an enhanced sentence under the guidelines, at least with respect to

imprisonment, based on the sentencing judge’s determination of a fact that was not

found by the jury or admitted by the defendant. Id. at ____, 125 S.Ct. at 750-51.

The Sixth Amendment is implicated due to the mandatory nature of the guidelines

that imposes binding requirements on sentencing judges. Id. The Supreme Court



                                           7
remedied the constitutional issue by excising the provision of the federal

sentencing statute that made the guidelines mandatory, rendering the guidelines an

advisory regime. See id. at ____, 125 S.Ct. at 756-57.

      Under Booker, there are two types of sentencing errors: constitutional and

statutory. A constitutional error is “the use of extra-verdict enhancements to reach

a guidelines result that is binding on the sentencing judge; the error is the

mandatory nature of the guidelines once the guidelines range has been

determined.” United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005). A

statutory or non-constitutional error occurs when a district court judge sentences a

defendant “under a mandatory Guidelines scheme, even in the absence of a Sixth

Amendment violation.” Id. at 1330-31.

      The right to appeal a sentence on Blakely or Booker grounds may be waived

in a plea agreement. United States v. Grinard-Henry, 399 F.3d 1294, 1297 (11th

Cir.), cert. denied, 125 S.Ct. 2279 (2005). We will enforce a sentence-appeal

waiver contained in a plea agreement where the government demonstrates either

that: "(1) the district court specifically questioned the defendant about the waiver

during the plea colloquy, or (2) the record clearly shows that the defendant

otherwise understood the full significance of the waiver." United States v.

Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997). Whether a defendant



                                           8
knowing and voluntary waived his right to appeal a sentence is a question of law

reviewed de novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993).

      To the extent that Salvia is raising a Booker challenge to the restitution

award, this award would not constitute plain error. We have stated that a

restitution order, even if it constituted error under Booker, cannot be “plain”

because neither we nor the Supreme Court have addressed whether Booker applies

to restitution orders, and other circuits are split on the question. United States v.

King, 414 F.3d 1329, 1330 (11th Cir. 2005). Thus, any challenge to the court’s

restitution order under Booker fails the plain error standard.

      With regard to Salvia’s challenge to his imprisonment term, we find that he

waived any constitutional error argument under Booker. Salvia’s plea agreement

stated that “Defendant waives any constitutional challenge to the Sentencing

Guidelines, waives indictment and trial by jury on all findings relevant to

sentencing, and agrees that the Court may make all such findings by a

preponderance of the evidence based on any reliable evidence, including hearsay.”

At the change of plea hearing, the court noted that Salvia’s plea agreement waived

any constitutional challenge to the federal sentencing guidelines under Blakely,

and Salvia acknowledged that he was satisfied with the waiver. Because the

district court discussed and explained the waiver at the plea agreement, we find



                                           9
that the waiver is enforceable and that Salvia waived any right to raise a

constitutional challenge to his sentence under Booker.

      Although we have not previously considered whether a waiver of the right to

raise a constitutional challenge under the guidelines also waives the right to raise a

challenge of Booker statutory error, it is unnecessary to decide this issue here

because the district court did not commit reversible Booker statutory error. The

court committed error that was plain by sentencing Salvia pursuant to a mandatory

guideline scheme. See United States v. Dacus, 408 F.3d 686, 689 (11th Cir. 2005).

      But Salvia cannot satisfy the third prong of plain error review for this

argument. In applying the third prong, we ask “whether 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 in this case.” Id. at 1300. The

record here does not demonstrate a reasonable probability that the court would

have imposed a different sentence if the guidelines were advisory. Salvia only

points to the following exchange between the court and Salvia’s counsel in arguing

that the court erroneously believed that the loss amount had no affect on his

sentence and suggesting that the court may have imposed a different sentence:

      THE COURT:           Let me ask you, you have made the objections and
                           I will rule on them, but none of this makes any
                           difference to his sentence, does it, assuming I
                           follow the plea agreement?

                                          10
      MR. BELL:            That’s right, Your honor. We didn’t - - I’ll leave it
                           at that then.

      THE COURT:           Okay, I just wanted to make sure. There seems to
                           be a lot of heat surrounding this issue. I’m trying
                           to figure out why.

      MR. BELL:            We thought it was an attempt to make our client
                           look more culpable than he is, while we admit he’s
                           certainly very culpable, but I’ll move on.

This exchange occurred following the government’s questioning of a witness

concerning whether Salvia obtained the house where the stolen goods were brought

and found the person who was going to buy the goods. As demonstrated by

Salvia’s counsel at the end of the quotation above, this testimony was relevant to

Salvia’s role in the offense, not to the value of the goods. Furthermore, the court

was correct that this issue was irrelevant if it followed the plea agreement because

the agreement clearly states that the government would not recommend a role

enhancement. The court ultimately adopted the PSI, which did not apply a role

enhancement, and sentenced Salvia to the minimum sentence under the guidelines.

The sentencing transcript reveals no other comments suggesting that the district

court felt that the sentence under the guidelines was too severe or that it would

have imposed a different sentence if the guidelines were advisory. Therefore,

Salvia has failed to satisfy the third prong of the plain error test with respect to

Booker error.

                                           11
                                         III.

      Salvia also contests the district court’s calculation of the amount of loss

under the guidelines on the grounds that the court should have used the cost of

replacement to determine the amount of loss and that the invoices from Intel, the

company whose goods were stolen, were inadequate because they listed the same

products at different prices.

      We review the district court's interpretation and application of the sentencing

guidelines de novo, and the loss calculation for clear error. United States v.

Machado, 333 F.3d 1225, 1227 (11th Cir. 2003).

      The commentary to U.S.S.G. § 2B1.1, which establishes the offense level for

theft, in the 1998 Guidelines manual, states that:

       “Loss” means the value of the property taken, damaged, or destroyed.
      Ordinarily, when property is taken or destroyed the loss is the fair
      market value of the particular property at issue. Where the market
      value is difficult to ascertain or inadequate to measure harm to the
      victim, the court may measure loss in some other way, such as
      reasonable replacement cost to the victim.

U.S.S.G. § 2B1.1, cmt. n.2. We have observed that the fair market value, for

purposes of U.S.S.G. § 2B1.1, "does not refer to one uniform measure, such as the

retail value, but rather the market in which the property was in at the time of the

offense." Machado, 333 F.3d at 1227-28. We have also stated that “[t]he market

value of stolen property is the price a willing buyer would pay a willing seller

                                          12
either at the time and the place that the property was stolen or at any time during

the receipt or concealment of the property.” United States v. Robinson, 687 F.2d

359, 360 (11th Cir. 1982).

      The district court interpreted the instructions in Machado to look to the

“market in which the property was in at the time of the offense” to be equivalent to

looking at what a willing buyer would pay a willing seller. The court determined

that the invoices provided evidence of the fair market value of the goods. The

court rejected Salvia’s request to calculate the value of the goods using the cost of

replacement as unworkable for a “high-tech product” like those at issue here

because of the problem of valuing intellectual property. The invoices provided

clear evidence of what a willing buyer would truly pay a willing seller for the items

in question. Even though the invoices appear to list some of the products at

different unit prices for different buyers, the invoices still reflect what those

particular buyers would pay for the specific goods. Furthermore, the guidelines

commentary only suggests that other methods of valuation should be used if

market value is “inadequate to measure harm to the victim.” Even if the invoices

reflect different prices for the same goods, they accurately measure the harm that

Intel suffered here. Thus, the court did not err in using Intel’s selling price to

calculate the amount of loss or in its factual findings in calculating the amount of



                                           13
loss.

                                            IV.

        Finally, Salvia argues that the district court erred in using the Intel invoices

to calculate the restitution amount because they listed products with the same name

at different prices and there was no explanation offered for this discrepancy.

Salvia further argues that the district court should have calculated the amount

based on the cost to Intel of manufacturing replacement components.

        We review a district court’s restitution order for abuse of discretion. United

States v. Twitty, 107 F.3d 1482, 1493 (11th Cir. 1997). We review for clear error

the district court’s factual findings in calculating the restitution amount. United

States v. Shugart, 176 F.3d 1373, 1375 (11th Cir. 1999).

        Under the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C.

§§ 3613A, 3663A, a district court is required to order that a defendant convicted of

an offense against property under Title 18 make restitution to the victim of the

offense. 18 U.S.C. § 3663A(a)(1), (c). The guidelines also require a court to

“enter a restitution for the full amount of the victim’s loss” if such an order is

authorized under § 3663A. U.S.S.G. § 5E1.1(a)(1).

        Section 3663A specifies that an order of restitution shall require a defendant

to pay “the greater of– (I) the value of the property on the date of the damage, loss,



                                            14
or destruction; or (II) the value of the property on the date of sentencing.”

18 U.S.C. § 3663A(b)(1)(B)(i). The government bears the burden of

demonstrating the amount of the victim's loss by a preponderance of the evidence.

See id. § 3664(e). We have held that “the preponderance standard must be applied

in a practical, common-sense way. So long as the basis for reasonable

approximation is at hand, difficulties in achieving exact measurements will not

preclude a trial court from ordering restitution.” United States v. Futrell, 209 F.3d

1286, 1292 (11th Cir. 2000). In defining “value” for purposes of restitution under

18 U.S.C. § 3663A, this Court has stated that “[f]or fungible commodities, value is

easy to determine: it's the actual cash value, or fair market value, of the item–that

is, the fair or reasonable cash price for which the property could be sold in the

market in the ordinary course of business.” Shugart, 176 F.3d at 1375 (quotations

and citations omitted). Replacement cost may be used as the “value” figure where

the actual cash value is unavailable or unreliable. Id.

      The district court did not abuse its discretion in using the Intel invoices

instead of the cost of replacement in calculating the restitution amount, or clearly

err in calculating the restitution amount. The district court found that the invoices

represented the fair price for which the property could be sold in the market under

Shugart. Because the invoices were not discredited as unreliable, there is no



                                           15
reason to use the replacement cost to determine “value.” Although the invoices

listed some identical products at different prices, this differential may reflect

adjustments made by Intel to different companies based on purchaser identity,

quantity of goods ordered, or other criteria. Regardless of the explanation for this

discrepancy, it does not discredit the invoices as unreliable evidence because they

in fact represent the prices that companies would pay for the products in question,

and references to those prices by the district court did not constitute an abuse of

discretion. Furthermore, the invoices at the very least constitute a “basis for

reasonable approximation” of the value of the stolen goods under Futrell. Thus,

the court did not clearly err in calculating the restitution amount.

      AFFIRMED.




                                           16
