                                                              [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                No. 04-11180                     AUGUST 23, 2005
                            Non-Argument Calendar               THOMAS K. KAHN
                          ________________________                  CLERK


                      D. C. Docket No. 03-00023-CR-CB-S

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                      versus

DARREL JACOBS,
a.k.a. Big D,
a.k.a. DJ Big D,
                                                              Defendant-Appellant.

                          ________________________

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

                                (August 23, 2005)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES

Before ANDERSON, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     This case is before the Court for consideration in light of United States v.
Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). We previously affirmed Darrel

Jacobs’s sentence in United States v. Jacobs, No. 04-11180 (11th Cir. December

27, 2004). In that opinion, we affirmed the district court’s denial of safety-valve

relief and found no error regarding his Blakely v. Washington, 542 U.S. 296, 124 S.

Ct. 2531 (2004), now Booker, claim as a result of United States v. Reese, 382 F.3d

1308, 1312 (11th Cir., 2004), vacated, 397 F.3d 1337 (11th Cir. 2005). On May 2,

2005, the Supreme Court vacated our prior decision and remanded the case to us

for further consideration in light of its decision in Booker.

      Jacobs was indicted on January 30, 2003, pled guilty pursuant to a plea

agreement on May 22, 2003, and was sentenced on February 17, 2004 – all prior to

the Supreme Court’s issuance of Blakely and Booker. At no point during or prior

to the sentencing hearing did Jacobs raise a constitutional challenge to his sentence

or assert any error based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000), or its progeny.

      Since Jacobs did not preserve Booker error in district court, we review for

plain error. United States v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005);

United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005). We 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 and (4) seriously



                                            2
affects the fairness, integrity, or public reputation of judicial proceedings.

Rodriguez, 398 F.3d at 1297.

      Based on the Supreme Court’s holding, we have stated that there could be

two Booker errors: (1) Sixth Amendment error – the error of imposing a sentencing

enhancement under a mandatory guidelines regime based on judicial findings that

go beyond the facts admitted by the defendant or found by the jury; and (2)

statutory error – the error of being sentenced under a mandatory guidelines system.

See Shelton, 400 F.3d at 1330-31.

      There was no Sixth Amendment error in this case because Jacobs admitted

in his factual résumé, which was incorporated by reference into his plea agreement,

that he was responsible for 1,000 pounds of marijuana. See United States v.

Cartwright, 413 F.3d 1295, 1300 (11th Cir. 2005); Plea Agreement, Att. Factual

Résumé, p. 6-7 (“The parties agree that Jacobs is accountable for 1,000 pounds of

the total amount of marijuana distributed in the conspiracy.”). On appeal, Jacobs

attempts to mutate the language in his plea agreement and his subsequent “Position

of Parties” as not admitting this fact. Nevertheless, having reviewed these

documents, it is clear that Jacobs admitted his responsibility for 1,000 pounds of

marijuana, but reserved the right to contest his involvement in any quantity of

cocaine or crack cocaine. See Plea Agreement, Att. Factual Résumé, p. 7 (“Jacobs



                                            3
disputes that he was involved with cocaine or crack cocaine. Jacobs has agreed to

allow the Court to determine the disputed drugs for which he is accountable and

the relevant amounts of each such substance at the sentencing hearing.”).1 Since

Jacobs admitted his responsibility for 1,000 pounds of marijuana, the district

court’s sentencing enhancement based on the 1,000 pounds of marijuana admission

was not Sixth Amendment Booker error.

       Regarding statutory error, the first two prongs of the plain error analysis are

easily met – a sentence under the mandatory guidelines regime is error that was

plain because it is sufficient for the error to be plain at the time of appellate

consideration. See Cartwright, 413 F.3d at 1300. The standard for the third prong

is “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 the case.” Rodriguez, 398 F.3d at 1301. Here, the district court sentenced

Jacobs to the lowest possible term of incarceration given his admission that he was

responsible for 1,000 pounds of marijuana. Even though the mandatory guidelines

recommended a sentencing range of 57 to 71 months, the relevant statutory penalty

provision mandated a minimum sentence of 60 months. See 21 U.S.C. §



       1
        Jacobs’s sentence did not include any enhancements based on responsibility for cocaine
or crack cocaine because the district court found that the government failed to establish that
Jacobs was responsible for any amount of cocaine or crack cocaine.

                                               4
841(b)(1)(B)(vii). Thus, since the district court may not sentence Jacobs below the

mandatory minimum statutory sentence, Jacobs cannot meet his burden of proving

that there is a reasonable probability of a different result under an advisory

guidelines regime.

       Accordingly, having now considered Jacobs’s sentence in light of Booker,

we again affirm Jacobs’s sentence. Additionally, we reinstate our previous opinion

to the extent that it affirmed the district court’s denial of safety-valve relief.

       OPINION REINSTATED IN PART; SENTENCE AFFIRMED.




                                             5
