                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            APRIL 19, 2005
                             No. 04-12786                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                D. C. Docket No. 03-00254-CR-T-17-TGW

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                  versus

HOWARD DUFFIS CLAUDIO,

                                                        Defendant-Appellant.


                       ________________________

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

                             (April 19, 2005)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
       Howard Duffis Claudio appeals his sentence imposed after pleading guilty to

one count of conspiracy to distribute five kilograms or more of cocaine, while

aboard a vessel subject to the jurisdiction of the United States, in violation of 46

App. U.S.C. § 1903(a), (g), (j), 21 U.S.C. § 960(b)(1)(B)(ii). We vacate and

remand for resentencing in light of United States v. Booker, 125 S. Ct. 738 (2005).

                                      I. DISCUSSION

A.     Guilty plea

       Claudio asserts his plea was not knowing and voluntary because he was

unaware the Government would have to prove the quantity of cocaine involved if

he went to trial, in light of Blakely v. Washington, 124 S. Ct. 2531 (2004) and

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).1 Moreover, he claims the district

court should have advised him about the drug amount before accepting his plea, so

he would have understood the nature of the charge to which the plea was offered.

Claudio maintains that because the district court did not advise him of the essential

element of the offense, drug quantity, when going over the crime at the plea or

sentencing hearings, it erred in proceeding to sentence him.


       1
          In Apprendi, 120 S. Ct. at 2362–63, the Supreme Court held, “[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.” In Blakely, the
Supreme Court, examining the State of Washington’s sentencing guidelines, held the imposition
of a sentencing enhancement must be supported by facts that were either admitted by the
defendant or found beyond a reasonable doubt by the jury. Blakely, 124 S. Ct. at 2537–38.

                                                2
      If no objection was made to the Federal Rule of Criminal Procedure 11

colloquy, we review for plain error. United States v. Monroe, 353 F.3d 1346, 1349

(11th Cir. 2003). A court accepting a guilty plea must comply with Rule 11,

including addressing “the three ‘core objectives’ of Rule 11, which are:

(1) ensuring the guilty plea is free of coercion; (2) ensuring the defendant

understands the nature of the charges against him; and (3) ensuring that the

defendant is aware of the direct consequences of the guilty plea.” Id. at 1354.

      Because Claudio did not object to his Rule 11 colloquy, he must show plain

error on direct appeal. He cannot do this. Although Claudio argues he was coerced

into pleading guilty based on the fact he did not know the Government was required

to prove the quantity of drugs element of the conspiracy offense, he was specifically

questioned about whether he understood this charge. After acknowledging he did

understand, he indicated he still wished to plead guilty. The record demonstrates

(1) the magistrate complied with Rule 11 to ensure that Claudio’s plea was knowing

and voluntary, (2) Claudio admitted to the quantity of drugs element, and (3) he

understood the elements of the conspiracy charge when he pled guilty to it. Thus,

his plea was both knowing and voluntary, and Blakely has no impact on the validity

of his plea. See e.g. Brady v. United States, 90 S. Ct. 1463 (1970) (indicating “a

voluntary plea of guilty intelligently made in the light of the then applicable law



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does not become vulnerable because later judicial decisions indicate that the plea

rested on a faulty premise”).

B.    Constitutionality of statute

      Claudio argues 21 U.S.C. § 841 is unconstitutional pursuant to Apprendi, and

the district court relied on that statute in sentencing him for a 21 U.S.C. § 846

conspiracy. We note Claudio pled guilty pursuant to 46 App. U.S.C. § 1903(a), (g),

and (j), and was sentenced pursuant to 21 U.S.C. § 960(b)(1)(B)(ii). Accordingly,

his argument is construed to challenge the constitutionality of these statutes.

       We have held § 1903 and the penalty provisions of § 960 are not

unconstitutional and “[t]here is constitutional error under Apprendi . . . in the 21

U.S.C. § 960 context only if the sentencing judge’s factual finding actually

increased the defendant’s sentence above the statutory maximum found in

§ 960(b)(3), and only if the fact that led to the enhanced sentence was not charged

in the federal indictment or submitted to the jury for proof beyond a reasonable

doubt.” United States v. Tinoco, 304 F.3d 1088, 1101 (11th Cir. 2002).

      Because (1) the statutory maximum pursuant to § 960(b)(3) is 20 years’

imprisonment, and Claudio was sentenced to 168 months, i.e., 14 years; and (2) the

indictment charged him with conspiracy to distribute five kilograms or more of




                                            4
cocaine, and Claudio admitted that five or more kilograms of cocaine were involved

in the offense, the statute is not unconstitutional as applied here.

C.    Sentencing Guidelines

      Finally, Claudio argues, pursuant to Blakely and Apprendi, the district court

erred in sentencing him pursuant to the Sentencing Guidelines based on the drug

quantity determined by the district court at sentencing. We review for plain error

those issues for which timely objections were not made in the district court. United

States v. Olano, 113 S. Ct. 1770, 1776 (1993). To prevail under a plain-error

standard, the appellant must show (1) there is error; (2) that is plain; and (3) the

plain error affects substantial rights. Olano, 113 S. Ct. at 1776. Once the appellant

proves these three elements, this Court may notice the error only if it “seriously

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

(internal quotations and citations omitted).

      1.     Sixth Amendment

      “A stipulation to a specific [fact]—whether as part of a written plea

agreement, part of a jury trial, or at sentencing—serve[s] as the equivalent of a jury

finding on that issue, since the stipulation takes the issue away from the jury” and

this rule applies not only when the defendant takes the affirmative step of

stipulating to a particular fact, but also when the defendant fails to object to or



                                            5
contest the particular finding at issue. See United States v. Sanchez, 269 F.3d 1250,

1271 n.40 (11th Cir. 2001) (en banc).

      Claudio’s base offense level of 38 under U.S.S.G. § 2D1.1(c)(3) is for

offenses involving at least 150 kilograms of cocaine. Claudio fails the first prong of

the plain error test because Claudio’s sentence was not enhanced as a result of

judicial findings as to drug quantity that went beyond the facts admitted by him.

Claudio did not object to the Presentence Investigation Report (PSI) statement that

the conspiracy involved 1,982 kilograms of cocaine. Additionally, at sentencing he

stated he did not object to the factual accuracy of the information contained in the

PSI. Claudio further signed the plea agreement, which included a factual statement

indicating that over 2,000 kilograms of cocaine were in the vessel. Because

Claudio admitted the drug quantity used for his sentence, there is no Sixth

Amendment violation under Booker in this case. See United States v. Shelton, 400

F.3d 1325, 1330 (11th Cir. 2005).

      2.     Mandatory/Advisory

      In a second and separate majority opinion, the Court in Booker concluded

that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of

1984, the appropriate remedy was to “excise” two specific sections, thereby

effectively rendering the Sentencing Guidelines advisory rather than mandatory.



                                           6
Booker, 125 S. Ct. at 764 (opinion of Breyer, J.). The Court indicated that both its

“Sixth Amendment holding and . . . remedial interpretation of the Sentencing Act”

must be applied “to all cases on direct review.” Id. at 769.

      Here, there is error that is plain because the district court treated the

Guidelines as mandatory. See Shelton, 400 F.3d at 1331. In applying the third

prong of the plain error test, “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.” United States v. Rodriguez, 398 F.3d

1291, 1301 (11th Cir. 2005). “To establish the third prong takes something more

than showing the district court sentenced within the Guidelines range and felt bound

to do so, especially given that the Guidelines range remains an important factor in

sentencing.” Shelton, 400 F.3d at 1332.

      In this case, there is a reasonable probability of a different result. The district

judge sentenced Claudio at the low end of the guidelines, and stated “It’s the

intention of the Court to sentence you at the low end . . . I recognize that you did

what you did out of your need and the poverty that [you are] in in Col[o]mbia.”

The district judge then went on to discuss how she understood Claudio committed

this crime out of desperation. She stated “[y]ou have been taken advantage of and

abused again in your life by these people who are higher up the ladder who don’t



                                            7
care about you, agree to pay you some money, and because of your need and your

desperation, you do what you do. They don’t care whether you are caught or not.”

The judge went on to say, “[b]ut for right now I have no choice. I am

required—required to impose this sentence upon you.” All of these comments

taken together convince us there is a reasonable probability the district court would

have imposed a lesser sentence in Claudio’s case if it had not felt bound by the

Guidelines. See id. at 1332–33.

      We further find the fourth prong of plain error is met here. There is a

reasonable probability the district court would have imposed a lesser sentence, and

the Supreme Court in Booker indicated the district court now has the discretion to

do so, provided the resulting sentence is reasonable in light of the 18 U.S.C.

§ 3553(a) factors. See id. at 1333–34. The plain error that affected Claudio’s

substantial rights also seriously affected the fairness, integrity or public reputation

of the judicial proceedings in this case. Thus, the district court plainly erred in

sentencing Claudio under a mandatory Guidelines system.

                                  II. CONCLUSION

      The district court did not err in proceeding to sentence Claudio after

accepting his plea. Additionally, 21 U.S.C. § 960 is not unconstitutional as applied

to Claudio. The district court plainly erred, however, in sentencing Claudio



                                            8
pursuant to a mandatory Guidelines system. Accordingly, we vacate Claudio’s

sentence and remand for resentencing consistent with Booker.

      VACATED AND REMANDED.




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