                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   May 27, 2005
                       _______________________
                                                          Charles R. Fulbruge III
                             No. 03-41142                         Clerk
                       _______________________

                      UNITED STATES OF AMERICA,

                        Plaintiff - Appellee,

                                 v.

                          JAIME GARCIA-GIL,

                       Defendant - Appellant.

                       _______________________

            Appeals from the United States District Court
                  for the Southern District of Texas
                              (03-CR-652)
                        _______________________

Before REAVLEY, DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant Jaime Garcia-Gil challenges both his conviction

for drug possession and his sentence.    For the reasons that

follow, we reject his arguments and affirm the district court’s

judgment.

     On April 23, 2003, Garcia-Gil pulled the pickup truck he was

driving into the Freer, Texas, Border Patrol checkpoint.        When

Garcia-Gil stopped at the checkpoint, an agent’s dog alerted to

the driver’s-side door.    The agent, Albert Martinez, took Garcia-

     *
      Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                  1
Gil’s border-crossing card1 and asked him some questions.     In

response, Garcia-Gil indicated that he was driving to Houston to

pick up some satellite-television dishes along with some

appliances, specifically a washing machine and a dryer.      He also

presented a bill of sale for the pickup and claimed he owned the

truck.   During the questioning, Agent Martinez noticed that

Garcia-Gil seemed to be riding unusually high in his pickup, so

high that the steering wheel was at his thighs.

     Martinez sent Garcia-Gil to the secondary inspection area.

Once there, Garcia-Gil exited his truck.    Agent Martinez

inspected the driver’s seat area, confirming that the seat was

placed extremely high——perhaps eight to ten inches higher than

normal——and noticed that the seat was very hard, as if it had

little cushioning.   He also observed that the bolts holding the

seat to the frame came off without any pressure and appeared to

have been pried off before.   Another agent drilled into the area

underneath the seat, where he found some white powder that turned

out to be cocaine.   Ultimately, the agent found twenty bundles of

cocaine with a total weight of around twenty kilograms.      The

cocaine’s estimated value was over one million dollars.

     The agents arrested Garcia-Gil.     Once told that he was under

arrest, Garcia-Gil turned around and simply placed his hands

behind his back.   He said nothing at that point.   The agents


     1
      Garcia-Gil is a Mexican citizen.

                                 2
handcuffed Garcia-Gil and read him his Miranda rights.    One of

the agents, Agent Loa, later testified that after being warned,

Garcia-Gil repeatedly asked himself what he had done and told the

agents that he had children.   According to Agent Martinez,

Garcia-Gil also said that he intended to drive back from Houston

in a different truck.

     The agents then searched Garcia-Gil and his truck.   They

found that Garcia-Gil was carrying a cell phone, along with $800

and some receipts.   Inside the pickup, the agents found a gym bag

containing new clothes.   Agent Martinez later testified that

Garcia-Gil told him that a friend had given him $500 and the cell

phone.   Garcia-Gil also said that this same friend told him to

drive the truck to Houston.

     Eventually, a DEA agent, Agent Nivar, arrived on the scene.

According to Agent Nivar, Garcia-Gil told him that a friend named

Buey had loaned him the truck in Monterrey to pick up appliances

in Houston, that Garcia-Gil had purchased insurance in Mexico,

and that the money was from his savings.   Garcia-Gil made

additional statements (about where he had stopped, for example)

that were supported by the receipts in the pickup.

     Garcia-Gil was later indicted on one count each of

conspiracy and possession with the intent to distribute more than

five kilograms of cocaine.    Garcia-Gil pleaded not guilty to both

counts, and the case against him proceeded to trial.



                                  3
     At the beginning of trial, Garcia-Gil filed a motion in

limine, asking the court to exclude expert evidence about drug-

smuggling organizations, particularly “expert testimony that an

accused acted in a manner consistent with possession with intent

to distribute a controlled substance or any such statement whose

direct implication is that the accused had the requisite mental

state.”   The Government responded that it had no intention of

offering that kind of testimony.       Given this response, the

district court did not rule on Garcia-Gil’s motion, and Garcia-

Gil did not press for a ruling.

     During trial, the Government introduced evidence about the

stop and the search.   As part of that evidence, Agent Martinez,

when asked about the position of the driver’s seat, responded,

“We usually look for that, you know, they’ll modify seats and

stuff like that.”   The Government later referred to this

testimony during its closing arguments.

     Garcia-Gil’s brother and wife testified on his behalf.       His

brother, Roberto Perales-Gil, testified that Garcia-Gil helped

him in his business, which involved buying electronic equipment,

such as satellite dishes, and then selling that equipment in

Mexico.   Perales-Gil testified that Garcia-Gil would help him by

making trips to flea markets in Houston.       Perales-Gil also told

the jury that on one of the Houston trips, Garcia-Gil arranged to

buy a washer and dryer but had to save some money before he could

purchase the appliances.

                                   4
     Garcia-Gil’s wife, Natalia, testified that on April 2, 2003,

she received a 7 a.m. phone call from someone informing her that

he had a pickup ready to be loaned to her husband.    At the time,

Garcia-Gil was out working his regular job delivering tostadas;

he did not return until the next day.    On the day he was

arrested, according to his wife, Garcia-Gil left the house around

8 a.m. and called her from Laredo at 1 p.m.    Natalia also

testified that they were poor and that Garcia-Gil was a good

father, a peaceful person, and someone who respected the law.

     The jury convicted Garcia-Gil on both counts.    The district

court, however, dismissed the conspiracy charge for insufficient

evidence.   After the conviction, but before sentencing, Garcia-

Gil spoke with Agent Nivar and gave him information about the

person who provided the pickup.   Throughout this time, Garcia-Gil

continued to maintain his innocence.    Over Garcia-Gil’s

objections based on the safety valve provision of the Sentencing

Guidelines and his minor role in the drug operation, the court

sentenced him to 151 months in prison with five years of

supervised release and imposed a $100 special assessment.     This

appeal followed.

Drug Courier Profile Testimony

     Garcia-Gil first argues that the Government improperly

introduced drug-courier-profile testimony at trial.

Specifically, he complains about Agent Martinez’s testimony



                                  5
concerning the elevated seats: “We usually look for that, you

know, they’ll modify seats and stuff like that.”2    According to

Garcia-Gil, the Government compounded the problem by referring to

this testimony during closing argument.   Garcia-Gil also raises

vague Daubert challenges under Federal Rule of Evidence 702.

     Garcia-Gil failed to obtain a ruling on his limine motion

and failed to object to the testimony at trial.3    Thus, the

admission of this testimony is reviewed for plain error.     See

FED. R. EVID. 103; United States v. Graves, 5 F.3d 1546, 1551—52

(5th Cir. 1993).   Under this standard, we first ask whether there

is an error that “is plain and affects substantial rights.”

United States v. Rhodes, 253 F.3d 800, 804 (5th Cir. 2001).     Yet

we do not correct such an error unless we conclude “that the

error ‘seriously affects the fairness, integrity or public

reputation of judicial proceedings.’” Id. (quoting United States

v. Thames, 214 F.3d 608, 612 (5th Cir. 2000)).

     In general, “drug courier profiles ‘have long been

recognized as inherently prejudicial because of the potential


     2
      Agent Martinez’s full testimony about seat placement was

          We usually look for that, you know, they’ll
          modify the seats and stuff like thatAnd we
          found people before hiding under the seats and
          stuff like that. So we always take notice of,
          you know, how they’re in the vehicle and
          stuff.
     3
      Garcia-Gil also never filed a motion under Federal Rule of
Evidence 702.

                                 6
they have for including innocent citizens as profiled drug

couriers,’ and therefore are not admissible as substantive

evidence of the defendant’s guilt.”   United States v. Mendoza-

Medina, 346 F.3d 121, 128 (5th Cir. 2003) (quoting United States

v. Williams, 957 F.2d 1238, 1241—42 (5th Cir. 1992)).   Garcia-Gil

contends that this kind of improper evidence was admitted in his

case.

     Yet the testimony that Garcia-Gil challenges is of a

different nature than the testimony in other cases involving drug

courier profiles.   In those cases, the testimony has often

directly addressed the defendant’s knowledge that he was

transporting drugs.4   For example, in United States v. Gutierrez-

Farias, 294 F.3d 657, 662–63 (5th Cir. 2002), the court held that

the district court abused its discretion when it admitted a DEA

agent’s testimony about drug organizations’ hiring processes.

Specifically, the agent testified that when looking for someone

to transport drugs, the organizations look for people with

“knowledge[] that they’re involved in this kind of business.”

Id. at 662.

     In Mendoza-Medina, the testimony was similar.   The agent in

that case testified that drug dealers have to trust their



     4
      Thus, the testimony in these cases also raises the problem
of expert testimony about a defendant’s mental state. See FED.
R. EVID. 704(b); Mendoza-Medina, 346 F.3d at 128. Garcia-Gil
does not contend that this issue is implicated here.

                                 7
couriers, and that couriers sometimes bring their wives and

children along to hide their drug activities.      Mendoza-Medina,

346 F.3d at 127.    (The defendant’s wife and children had been

with him when he was arrested.     Id. at 125.)   The prosecutor

summed up in closing, “we also know that it's true, based on DEA

intelligence, that narcotics trafficking organizations don't just

stick marijuana on tractors of drivers that don't know where it's

going.”    Id. at 128.   Based on these statements and the

conclusion the Government wanted the jury to draw from them, the

Mendoza-Medina court determined that the district court had

abused its discretion in admitting the agent’s testimony.      Id. at

129.

       What Garcia-Gil complains about is not classic drug-courier-

profile testimony.    Compared with the testimony in Gutierrez-

Farias and Mendoza-Medina, Agent Martinez’s testimony, explaining

why Garcia-Gil was sent to the secondary inspection area, is of

an entirely different nature.     In addition, Garcia-Gil’s argument

that this was drug-courier-profile testimony ignores what

Martinez said immediately after “they’ll modify the seats and

stuff like that.”    Martinez’s continued testimony sounds like

elevated seats were signs of smuggling people, not drugs: “And we

found people before hiding under the seats and stuff like that.

So we always take notice of, you know, how they’re in the vehicle

and stuff.”    It is therefore not clear that this testimony was,


                                   8
in fact, about drug couriers at all.

     Moreover, the Government’s use of the testimony in its

closing argument solely focused on the irregular placement of the

seat: “[Agent Martinez] noticed something unusual.   And it was

that the seat in that truck was lifted.   Not the truck, itself.

But the seat in the truck was lifted.”    This statement does not

refer to any of the types of improper expert testimony that

Garcia-Gil complains about.5   After all, Garcia-Gil’s motion in

limine addressed “expert testimony concerning the operations of

drug smuggling organizations.”   But in closing, the Government

referred to the testimony in the context of Garcia-Gil’s truck

containing something obviously out of the ordinary, not in the

context of how drug smuggling organizations generally operate.

This testimony was not expert testimony about drug operations,

and so Garcia-Gil’s limine motion was not implicated.   Garcia-Gil

has not shown error in admitting Agent Martinez’s testimony or in

referring to this testimony in closing argument.

Pre-Miranda Silence

     Garcia-Gil next argues that the Government violated his

Fifth Amendment rights by using his postarrest, pre-Miranda-

warning silence as evidence of his guilt.   Garcia-Gil admits that

he failed to object at trial to this testimony and concedes that



     5
      Garcia-Gil does not challenge Martinez’s knowledge of the
normal seat height for a pickup truck.

                                 9
review is for plain error.

     Garcia-Gil bases this challenge on Agent Martinez’s and

Agent Loa’s testimony about the arrest.    Martinez testified that

after the agents told Garcia-Gil that he was under arrest, he

stood up, put his head down, and placed his hands behind his

back.    According to Martinez, “[h]e didn’t ask us, you know, at

that point what he was under arrest for.”6   Loa likewise

testified that Garcia-Gil, upon being informed that he was under

arrest, “without asking why, turned around, placed his hands

behind his back.”

     Use at trial of pre-Miranda silence is not necessarily

unconstitutional.    “[T]he Constitution does not prohibit the use

for impeachment purposes of a defendant's silence prior to

arrest, . . . or after arrest if no Miranda warnings are given.

Such silence is probative and does not rest on any implied

assurance by law enforcement authorities that it will carry no

penalty.”    Brecht v. Abrahamson, 507 U.S. 619, 628 (1993)

(citations omitted).    “The admission of evidence that a defendant

remained silent on arrest and before a Miranda warning turns on


     6
      Martinez testified this way in response to the question
“And once you saw the white powder, what did you do next?”
Martinez’s full answer was,
     We came around front where Mr. Garcia was sitting at, and
     we told him that he was under arrest.          Agent Loa
     handcuffed him. When we told him he was under arrest, he
     stood up, and he put his hands behind his back. Kind of
     put his head down. He didn’t ask us, you know, at that
     point, you know, what he was under arrest for.

                                 10
fact specific weighing by the trial judge.”     United States v.

Musquiz, 45 F.3d 927, 931 (5th Cir. 1995).

     Garcia-Gil emphasizes that in this case, his silence was

used as part of the prosecution’s case-in-chief, not for

impeachment purposes.   He argues that silence can only properly

be used as impeachment evidence.     This court has held otherwise.

     In United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.

1996), the court found no error in the prosecution’s use of the

defendant’s pre-arrest silence in its case-in-chief and in its

closing argument.   The defense’s theory of the case was that

Zanabria had been forced to smuggle drugs because of threats

against his daughter.   Id. at 592.    In its case-in-chief, the

Government introduced testimony that, before arrest, Zanabria did

not mention any threats against his daughter.     Id. at 593.   The

court concluded,

     The fifth amendment protects against compelled self-
     incrimination but does not, as Zanabria suggests,
     preclude the proper evidentiary use and prosecutorial
     comment about every communication or lack thereof by the
     defendant which may give rise to an incriminating
     inference. We find no error in the use of this evidence
     or in the prosecutor’s comments thereon.

Id. at 593.   Thus, this circuit’s precedent prevents Garcia-Gil

from drawing a distinction based on whether the silence was used

as impeachment evidence or as substantive evidence of guilt.

     Essentially, Garcia-Gil argues that all testimony about

postarrest silence violates the Fifth Amendment when introduced


                                11
as evidence of guilt.   He does not distinguish his case from

Zanabria, in which this court concluded that evidence of the

defendant’s silence could be used in the Government’s case-in-

chief.    Moreover, Garcia-Gil does not explain how this testimony

prejudiced him, except to comment that the evidence against him

was “slim,” a characterization not supported by the record.      In

short, Garcia-Gil has not established error.

Sentencing Guidelines

     Garcia-Gil also raises two issues about the application of

the federal sentencing guidelines to his case.    He claims that he

was entitled to both a safety valve reduction and a reduction for

playing a minor role in the offense.     Since the parties submitted

their briefs, the Supreme Court decided United States v. Booker,

125 S.Ct. 738 (2005).   In Booker, the Court held that a sentence

based on judge-made fact findings under mandatory federal

sentencing guidelines violates a defendant’s Sixth Amendment

rights.   125 S.Ct. at 750, 756.    As a remedy, the mandatory

aspects of the federal sentencing guidelines were severed from

the rest of the statute, as were the sections relating to

appellate review.    Id. at 764.

     In reviewing pre-Booker sentences, “when a district court

has imposed a sentence under the Guidelines, this court continues

after Booker to review the district court’s interpretation and

application of the Guidelines de novo.”     United States v.


                                   12
Villegas, 404 F.3d 355, 359 (5th Cir. 2005).     This court has also

concluded that factual issues relating to the guidelines and

decided before Booker continue to be reviewed for clear error.

United States v. Creech, —— F.3d ——, No. 04-40354, 2005 WL

1022435, at *6 (5th Cir. May 3, 2005).

Safety Valve

     Garcia-Gil’s first sentencing argument is that the district

court erred by not granting him relief under the safety valve

provision, 18 U.S.C. § 3553(f) and U.S. SENTENCING GUIDELINES MANUAL

§§ 2D1.1(b)(6) & 5C1.2 (2004).    Under this provision, a defendant

convicted of certain drug crimes is sentenced under the otherwise

applicable guideline range, rather than the statutory mandatory

minimum, if he establishes that he meets certain requirements.

These requirements are:

     (1) [T]he defendant does not have more than 1 criminal
     history point, as determined under the sentencing
     guidelines;

     (2) [T]he defendant did not use violence or credible
     threats of violence or possess a firearm or other
     dangerous weapon (or induce another participant to do so)
     in connection with the offense;

     (3) [T]he offense did not result in death or serious
     bodily injury to any person;

     (4) [T]he defendant was not an organizer, leader,
     manager, or supervisor of others in the offense, as
     determined under the sentencing guidelines and was not
     engaged in a continuing criminal enterprise, as defined
     in section 408 of the Controlled Substances Act; and

     (5) [N]ot later than the time of the sentencing hearing,
     the defendant has truthfully provided to the Government

                                  13
     all information and evidence the defendant has concerning
     the offense or offenses that were part of the same course
     of conduct or of a common scheme or plan, but the fact
     that the defendant has no relevant or useful other
     information to provide or that the Government is already
     aware of the information shall not preclude a
     determination by the court that the defendant has
     complied with this requirement.

18 U.S.C. § 3553(f).

     In this case, the district court determined that Garcia-Gil

did not qualify for a safety valve reduction because he did not

satisfy the fifth, “tell-all” requirement.    The parties disagree

about the basis for this decision.    The Government contends that

the district court based its decision on an implicit finding that

Garcia-Gil’s information was incomplete and not entirely

truthful.   Garcia-Gil, on the other hand, contends that the

district court determined, as a matter of law, that a defendant

who provided all the information he had but still maintained his

innocence could never be entitled to a safety valve reduction.

     Garcia-Gil provided information to Agent Novar but continued

to claim that he was innocent.   The probation officer reasoned

that despite this information, Garica-Gil’s claim of innocence

prevented him from receiving the safety valve reduction.   Garcia-

Gil objected to this assertion and argued that the safety valve

statute requires him to provide truthful information, but does

not necessarily require him to admit guilt.   The district court

disagreed, stating, “It is contemplated that you provide

information to the government——you know, about your involvement.


                                 14
And certainly you are going to admit your involvement, and most

certainly after a jury has found you guilty.”

     On appeal, Garcia-Gil argues that the district court

improperly read a requirement that a defendant admit his guilt

into the requirement that he truthfully provide the Government

with all the information and evidence that he has.      Garcia-Gil

contends that the two issues are separate and relies on United

States v. Sherpa, 110 F.3d 656 (9th Cir. 1996), to support this

distinction.

     In Sherpa, the Ninth Circuit held that the district court

did not err in awarding a defendant a safety valve reduction even

though he continued to insist that he did not know that he was

transporting drugs. Id. at 663.     The court concluded that the

judge could find that the defendant was being truthful and

complete in his disclosures despite his continued claims of

innocence.     Id. at 660-61.   Sherpa is based on the difference

between the judge’s factual findings and the jury’s.       Id. at 660.

Thus, the Sherpa court indicated that “[t]he judge is privy to

far more information than the jury and is therefore in a much

different posture to assess the case and determine whether the

defendant complies with § 3553(f).”      Id. at 660.   The court

continued,

     A judge, therefore, could logically find that reasonable
     minds might differ on a given point so as to preclude a
     judgment of acquittal, but conclude that he or she would
     have voted differently had he or she been a juror. While

                                   15
     the judge's personal disagreement has no impact on the
     jury’s finding of guilt, . . . such disagreement is
     properly considered in the judge’s sentencing decision.

Id. at 661.

     But Sherpa does not go as far as Garcia-Gil contends it

does.    The Sherpa court stated that “[all information relevant to

the offense], of course, encompasses [the defendant’s] role in

the offense, including whether he knew that there were drugs

secreted in the suitcase——such knowledge being an element of the

offense charged.” Id. at 660.    Therefore, even under Sherpa, the

issue is not whether a defendant can continue to falsely maintain

his innocence and still receive a safety valve reduction.7

Instead, the issue is whether, despite the jury verdict, the

district court can believe those protestations of innocence and

grant safety valve relief.

     Furthermore, other circuits have reached different

conclusions than the Sherpa court did.    See United States v.

Reynoso, 239 F.3d 143, 149-50 (2d Cir. 2000) (calling Sherpa

“wrongly decided” and declining to follow it); see also United

States v. Buenrostro-Flores, No. 03-2545, 2004 WL 1943218, at *6

(7th Cir. 2004) (“In light of a jury verdict against him and the


     7
      Thus, for Garcia-Gil to prevail under Sherpa, he would have
to show that the district court erred in finding that, contrary
to the jury verdict, he did not know the drugs were in the
pickup. Although Sherpa would allow the district court to reach
such a finding, it does not seem, given the facts of this case,
that Sherpa would require it.

                                 16
evidence we found earlier to have been sufficient to support that

verdict, Buenrostro has not met the burden of proving his

eligibility for the safety valve reduction.”).

     Nevertheless, the Government does not argue in favor of a

per se rule that a guilty verdict precludes safety valve relief.

Instead, the Government argues that the district court implicitly

found that Garcia-Gil had not been truthful or that his continued

claim of innocence prevented him from disclosing all his

information, such as the drugs’ source or destination.    We agree.

     In the end, Garcia-Gil has not established that he is

entitled to safety valve relief.     The district court did not err

when it concluded that Garcia-Gil failed to fulfill the “tell-

all” requirement.   Although it is possible, if the court follows

Sherpa, for the district court to believe a defendant’s

protestations of innocence and find that he has told the

prosecution all he knows, such a finding is certainly not

required.   Instead, we easily accept the district court’s finding

that Garcia-Gil was not being truthful and that this lack of

candor disqualified him from safety valve eligibility.    We do not

need to adopt or reject the Ninth’s Circuit’s reasoning in

Sherpa.

Mitigating Role

     Garcia-Gil also claims that he was entitled to a reduction

for playing a minor role in the offense.    The guidelines provide


                                17
for a four-level reduction “[i]f the defendant was a minimal

participant in any criminal activity” and a two-level reduction

“[i]f the defendant was a minor participant in any criminal

activity.”    U.S. SENTENCING GUIDELINES MANUAL § 3B1.2(a)&(b)(2004).

To be a minor participant, the defendant generally must be

“substantially less culpable” than the average participant in the

criminal activity.    United States v. Brown, 54 F.3d 234, 241 (5th

Cir. 1995).

     Garcia-Gil contends that he was entitled to a mitigating

role reduction because he was merely a courier.        Citing

application note 3(A) to § 3B1.2, he argues that couriers are not

necessarily excluded from a mitigating role reduction.          The

application note provides,

     A defendant who is accountable under 1.3 (Relevant
     Conduct) only for the conduct in which the defendant
     personally was involved and who performs a limited
     function in concerted criminal activity is not precluded
     from consideration for an adjustment under this
     guideline. For example, a defendant who is convicted of
     a drug trafficking offense, whose role in that offense
     was limited to transporting or storing drugs and who is
     accountable under 1.3 only for the quantity of drugs the
     defendant personally transported or stored is not
     precluded from consideration for an adjustment under this
     guideline.

U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 application note 3(A)(2004).

Yet not being automatically precluded is not the same thing as

being entitled to a reduction.

     Garcia-Gil also contends that the Government essentially

conceded his minor role during its closing argument by impliedly


                                   18
agreeing that he owned neither the pickup nor the cocaine.   He

finds this concession in the Government’s argument that the owner

of the cocaine would not have let him drive the pickup if he did

not know he was transporting cocaine.   He also argues that the

Government essentially conceded his limited role when it argued

that his poverty was a motive for transporting the drugs.

According to Garcia-Gil, this argument implied that he could not

have organized a large drug-trafficking scheme.   We do not agree

that the Government conceded Garcia-Gil’s minor role.

     On the whole, Garcia-Gil has not presented a persuasive

argument that he is entitled to a reduction for a mitigating

role.    The district court’s conclusion was not clearly erroneous.

Booker

     Garcia-Gil also argues, citing Booker, that the mandatory

nature of the federal sentencing guidelines at the time of his

sentencing violated his Sixth Amendment rights.   He raises this

issue for the first time on appeal; therefore our review is for

plain error.    United States v. Mares, 402 F.3d 511, 520(5th Cir.

2005).    Thus, we cannot reverse 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


                                 19
proceedings.’” Id.(quoting United States v. Cotton, 535 U.S. 625,

631,(2002)).   The Government concedes that under Booker, the

error in this case (sentencing under a mandatory guideline

regime) was plain and that the first two prongs are therefore

satisfied.

     At issue, then, is the third prong——whether the error

affected substantial rights.   Under this prong, “the pertinent

question is whether [the defendant] demonstrated that the

sentencing judge——sentencing under an advisory scheme rather than

a mandatory one——would have reached a significantly different

result.” Id. at 521.   Garcia-Gil argues that he can present

evidence that the district court would have sentenced him

differently.   Specifically, Garcia-Gil argues that unlike in

United States v. Mares, the district court in his case gave him a

sentence at the bottom of the guideline range.   He contends that

based on this sentence, we should presume prejudice.

     Nevertheless, a sentence at the bottom of the guidelines,

standing alone, is not enough to satisfy the plain error

standard.    In United States v. Hernandez-Gonzalez, the court

concluded on a petition for rehearing that the defendant had not

satisfied his burden when he showed that “(1) the judge imposed

the minimum sentence under the Guidelines; (2) he suffered from

an alcohol abuse problem that was responsible for much of his

criminal history; and (3) he had returned illegally to the United


                                 20
States to earn money for his family in Honduras.”      —— F.3d ——,

No. 04-40923, 2005 WL 724636, at *1 (5th Cir. March 30, 2005).

The Hernandez-Gonzalez court explained,

      [The defendant] points to no remarks made by the
      sentencing judge that raise a reasonable probability that
      the judge would have imposed a different sentence under
      an advisory scheme. Hence, even if [the defendant] had
      made this argument before the decision issued on this
      direct appeal, it would have failed under the plain-error
      test.

Id.   Therefore, merely showing a sentence at the bottom of the

applicable guidelines range, as Garcia-Gil does, is insufficient

to show plain error in his sentence.

Apprendi Challenge

      In his brief, Garcia-Gil also argues that the drug quantity

and type provisions of 21 U.S.C. § 841 (a) and (b) are facially

unconstitutional under the principles articulated in Apprendi v.

New Jersey, 530 U.S. 466 (2000).      Garcia-Gil admits that his

argument is foreclosed by United States v. Slaughter, 238 F.3d

580, 582 (5th Cir. 2000).   Nothing interferes with Slaughter’s

application here, and thus we overrule Garcia-Gil’s Apprendi

objection.

Conclusion

      For these reasons, we affirm the judgment of the district

court.

AFFIRMED.




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