                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            MAY 18, 2005
                             No. 03-15018
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                  D.C. Docket No. 03-00005-CR-1-MMP

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

     versus

DENNIS WAYNE LEFEBVRE,

                                                     Defendant-Appellant.

                      __________________________

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

                              (May 18, 2005)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES

Before DUBINA, CARNES and HULL, 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 Lefebvre’s

conviction and sentence. See United States v. Lefebvre, No. 03-15018 (11th Cir.

April 21, 2004) (unpublished).

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

for further consideration in light of Booker. Lefebvre concedes in his

supplemental brief that he did not raise any Blakely or Booker type issues in the

district or appellate courts. He first raised such an issue in his petition for writ of

certiorari in the United States Supreme Court. Lefebvre also acknowledges in his

supplemental brief that the standard of review is plain error affecting substantial

rights.

          This court has discretion to correct an error under plain error review where

there is (1) error; (2) that is plain; (3) affects the defendant’s substantial rights; and

(4) seriously affects the fairness, integrity or public reputation of judicial

proceedings. United States v.Curtis, 400 F.3d 1334, 1335 (11th Cir. 2005).

          In its supplemental brief, the government concedes that the district court

erred when it sentenced Lefebvre pursuant to the sentencing guidelines. The

                                              2
Booker error satisfied the first two prongs of the plain error test. See United States

v. Rodriguez, 398 F.3d 1291, 1298-99 (11th Cir. 2005). Lefebvre bears the burden

to establish the third prong of plain error, namely, that the Booker error affected

his substantial rights. United States v. Duncan, 400 F.3d 1297, 1302 (11th Cir.

2005). Where the third prong of the plain error test is met, the fourth is also met.

United States v. Shelton, 400 F.3d 1325, 1333-34 (11th Cir. 2005). Thus, the third

prong is decisive.

      Lefebvre argues that the Booker error affected his substantial rights, because

if the sentencing guidelines had been merely advisory, he would have received a

lower sentence. He argues that the district court’s failure to state what sentence it

would have imposed if the guidelines were advisory is not the end of the inquiry,

citing United States v. Curtis, 400 F.3d 1334. In Curtis, we found the Booker

error did not affect the defendant’s substantial rights because the district court had

imposed a sentence at the top of the guideline range. 400 F.3d at 1336. In Curtis

we explained that a sentence at the top of the guidelines is inconsistent with an

argument that the court would have imposed a lesser sentence if the court had

considered the guidelines advisory only. Id.

      In our view, Curtis defeats Lefebvre’s argument, because he was sentenced

in the middle of the guidelines. If the district court had any misgivings about the

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reasonableness of the sentencing guideline range, it would not have imposed a

sentence above the bottom of the range. Moreover, the district court did not state

at sentencing that the guideline range was too harsh or that it would have imposed

a different sentence if the sentencing guidelines were not mandatory. The district

court expressly stated that the sentence was reasonable given the amount of drugs

and Lefebvre’s criminal history. Accordingly, we conclude from the record that

Lefebvre fails to prove that “there is a reasonable probability of a different result if

the guidelines had been applied in an advisory instead of binding fashion.”

Shelton, 400 F.3d at 1332 (citation omitted).

      After our reconsideration of this case and in light of Booker, we reinstate

our previous opinion in this case and affirm Lefebvre’s convictions and sentences.

      OPINION REINSTATED IN PART; CONVICTIONS AND

SENTENCES AFFIRMED.




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