                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 04-12490                    FILED
                                                       U.S. COURT OF APPEALS
                            Non-Argument Calendar
                                                         ELEVENTH CIRCUIT
                          ________________________          June 8, 2005
                                                           THOMAS K. KAHN
                      D.C. Docket No.   03-00503-CR-CO-S        CLERK

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

      versus

FRED WADE,

                                                         Defendant-Appellant.

                         __________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________
                                 (June 8, 2005)

Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.

BARKETT, Circuit Judge:

      Fred Wade appeals his conviction and 262-month total sentences for

possession and receipt of child pornography, in violation of 18 U.S.C. §§
2252A(a)(2)(B) and (a)(5)(B). Wade pled guilty following a plea colloquy with

the district court in which the court advised Wade that (1) he was not required to

plead guilty and, (2) by entering a plea of guilty, he would be waiving certain

rights, which the court listed. At the sentencing hearing, Wade stipulated that

certain testimony relating to his uncharged sexual molestation of a minor female

and a minor male was true. The government proffered additional testimony from

an investigating police officer relating to an uncharged report by a separate minor

female that Wade had sexually molested her – an allegation which Wade denied.

Based on this testimony, the district court found “at least three instances with at

least three separate victims of lewd and lascivious acts [by Wade] with a child

under the age of 14” that did not result in a criminal conviction. The district court

then upwardly departed from the federal sentencing guidelines, finding that

Wade’s criminal history category (as set forth in Wade’s presentence investigation

report) did not adequately reflect the “seriousness of [Wade’s] past criminal

conduct or the likelihood that [Wade] will commit other crimes.” It also increased

the offense levels for the convictions, finding that placing Wade within the highest

category of criminal history would still be “inadequate” to sentence him

appropriately.




                                          2
       On appeal, Wade raises for the first time two arguments tied to the Supreme

Court’s decisions in Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531, 159

L.Ed.2d 403 (2004) and United States v. Booker, 125 S. Ct. 738 (2005). First,

Wade argues that the district court’s enhancement of his sentence based on a

judicial determination of past uncharged criminal conduct violated his Sixth

Amendment rights under Booker / Blakely. Second, Wade argues that because he

did not knowingly and voluntarily waive his right to have all facts proven to a jury

beyond a reasonable doubt, his plea was involuntary. Because we find no merit in

either contention, we affirm his sentence and plea.

       Because Wade failed to raise his Booker arguments before the district court,

we review only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298

(11th Cir. 2005). Thus, we may not correct an error not raised below unless: (i)

there is error; (ii) that is plain; and (iii) that affects substantial rights. Id. citing

United States v. Cotton, 535 U.S. 625, 631 (2002). If these conditions are met, we

then have the discretion to correct the error where it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id.

       Because the district court enhanced Wade’s sentence based on its

determination of facts that Wade did not admit, there is Booker error. See Booker,

125 S.Ct. at 756 (“Any fact (other than a prior conviction) which is necessary to

                                              3
support a sentence exceeding the maximum authorized by the facts established by

a plea of guilty . . . must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.”). That error is now plain. However, in order to satisfy the

third prong of the plain error test, the defendant must demonstrate a reasonable

probability that the error affected the outcome of the district court proceeding.

United States v. Dominguez-Benitez, 124 S. Ct. 2333, 2340 (2004). While the

defendant satisfies this requirement where he points to evidence suggesting that

the district court would have been inclined to impose a lower sentence were the

sentencing guidelines advisory, United States v. Shelton, No, 04-12602, 2005 U.S.

App. LEXIS 3290 (11th Cir. Feb. 25, 2005), the third prong is not met where the

probability that the district court would impose a reduced sentence merely equals

the probability of an increased or identical sentence under an advisory guidelines

scheme. Rodriguez, 398 F.3d at 1301.

      In this case, Wade can point to no evidence suggesting that the district court

would be likely to impose a different sentence under the guidelines that Booker

has rendered advisory. Indeed, the district court found that because the

defendant’s criminal history was inadequately represented by his guidelines range,

an upward departure by two criminal history categories and one offense level was

necessary to “accurately represent the seriousness of the defendant’s past criminal

                                          4
conduct and his likelihood to commit other crimes.” R. 55 at 40: 5-7.

Furthermore, though the resulting guideline range permitted a sentence ranging

from 210 to 262 months’ imprisonment, the district court imposed a 262 month

sentence, explaining that “a sentence at the high end of the guideline range . . . is

appropriate considering the defendant’s conduct . . . [and] considering the public’s

need and the need for punishment as to this particular defendant.” R. 55 at 40: 15-

23. Under these circumstances, and after a searching review of the record, we

conclude that Wade cannot demonstrate any reasonable probability that in a

sentencing proceeding free from Booker error the outcome would differ.

      Similarly, we find no reversible error in Wade’s plea colloquy. While Wade

concedes that he understood the nature of the charges against him, and was free

from coercion, he argues that his plea was involuntary solely because he was never

advised of his Sixth Amendment Blakely (now Booker) right to have every fact

proved to a jury beyond a reasonable doubt. However, Wade was sentenced under

the then-applicable mandatory guidelines system which was both described in his

plea agreement and expressly explained by the district court during the plea

colloquy. Furthermore, “a voluntary plea of guilty intelligently made in light of

the then applicable law does not become vulnerable because later judicial

decisions indicate that the plea rested on a faulty premise.” Brady v. United

                                          5
States, 397 U.S. 742, 757 (1970); see also, United States v. Sahlin, 399 F.3d 27,

31 (1st Cir. 2005) (holding that defendant’s plea was voluntary notwithstanding

the effect of Booker, as “the possibility of a favorable change in the law occurring

after a plea is one of the normal risks that accompany a plea”). The Booker and

Blakely decisions thus fail to render Wade’s plea involuntary.

      AFFIRMED.




                                         6
TJOFLAT, Circuit Judge, concurring specially:

      According to the presentence report (PSI”) in this case, the base offense

level1 and the specific offense characteristics2 adjusted for Wade’s acceptance of

responsibility3 yielded an adjusted offense level of 24. The PSI then fixed Wade’s

criminal history category at IV. An offense level 24 and a criminal history of IV

prescribed a sentence range of 77 to 96 months’ imprisonment. Wade’s Count

One and Count Two convictions for possession of child pornography4 subjected

Wade to maximum and mandatory minimum penalties of 20 years’ and 10 years’

imprisonment, respectively.5 Wades’ Count Four conviction for receipt of child

pornography6 subjected Wade to maximum and mandatory minimum penalities of

40 years’ and 15 years’ imprisonment, respectively.7




      1
          See U.S.S.G. § 2G2.4(a).
      2
          See U.S.S.G. §§ 2G2.4(b)(1), (b)(3), (b)(4) and (b)(5)(C).
      3
          See U.S.S.G. § 3E1.1(a) and (b).
      4
          See 18 U.S.C. § 2252A(a)(5)(B).
      5
          See 18 U.S.C. § 2252A(b)(2).
      6
          See 18 U.S.C. § 2252A(a)(2)(B).
      7
          See 18 U.S.C. § 2252A(b)(1).
                                                7
       The Guidelines prescribed the mandatory minimum 120 months’

imprisonment as the sentences for Counts One and Two and the mandatory

minimum 180 months’ imprisonment as the sentence for Count Four.8 Based on

facts not admitted by the defendant, the district court departed upwardly from the

above prescribed sentences and imposed concurrent prison terms of 240 months

on Counts One and Two and 262 months on Count Four.9

       As the court properly holds, in enhancing the defendant’s sentences in this

fashion, the district court committed Booker error that is plain. Ante at 2-3.

Turning to the third prong of the plain-error inquiry, the court concludes that

Wade failed to establish that the court would likely have imposed lesser sentences

had it treated the Guidelines as advisory rather than mandatory. Ante at 5-6.

       As I explain in my dissent to the court’s refusal to rehear Rodriguez en

banc, the enhancement of a defendant’s sentence on the basis of facts the

defendant neither admits nor the jury finds beyond a reasonable doubt is structural

error; hence, the third prong of the plain-error test is inapplicable. See United

States v. Rodriguez, — F.3d —, 2005 WL 895174 (11th Cir. Apr. 19, 2005)


       8
           See U.S.S.G. § 5G1.1(c)(2).
       9
          As the court states, ante at ___, the district court relied upon as fact “‘at least three
instances with at least three separate victims of lewd and lascivious acts [by Wade] with a child
under the age of 14' that did not result in a criminal conviction.”
                                                8
(Tjoflat, J., dissenting from the denial of rehearing en banc). Accordingly, we

should consider whether the error “seriously affect[s] the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725,

736, 113 S. Ct. 1770, 1779, 123 L. Ed.2d 508 (1993). We decline to take that step,

however, because the prior-panel rule requires that we adhere to Rodriguez’s

holdings.




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