                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                          AUGUST 22, 2005
                            No. 04-12694
                                                         THOMAS K. KAHN
                        Non-Argument Calendar
                                                             CLERK
                      ________________________

                   D.C. Docket No. 03-20996-CR-JAL

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                  versus

RAFAEL SANTANA SERRANO-PINERO,

                                                    Defendant-Appellant.

                     __________________________

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

                             (August 22, 2005)

                  ON REMAND FROM THE
            SUPREME COURT OF THE UNITED STATES

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      This case is before the Court for consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005). We previously affirmed Serrano-Pinero’s

sentence. See United States v. Serrano-Pinero, Case No. 04-12694 (11th Cir.

Nov. 23, 2004) (unpublished). The Supreme Court vacated our prior decision and

remanded the case to us for further consideration in light of Booker.

      In his initial brief on direct appeal, Serrano-Pinero argued: (1) the district

court erred in finding he was not entitled to a reduction for a mitigating role, and

(2) the district court erred under Blakely v. Washington, 124 S. Ct. 2531 (2004), by

sentencing him for transporting “one kilogram or more” of heroin because he

never admitted or stipulated to importing an exact amount of heroin. On

reconsideration, we reinstate our opinion as to the mitigating role issue and

consider the Booker claim only.

      Because Serrano-Pinero did not raise a Blakely or Booker objection in the

district court, his Booker claim should be reviewed under the plain error standard.

See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

      An appellate court may not correct an error the defendant failed to
      raise in 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 the judicial proceedings.



                                            2
Id. (internal quotations and citation omitted). We have clarified there are two

types of Booker error: (1) Sixth Amendment, or constitutional, error based upon

sentencing enhancements imposed under a mandatory Guidelines system neither

admitted by the defendant nor submitted to a jury and proven beyond a reasonable

doubt; and (2) statutory error based upon sentencing under a mandatory

Guidelines system. United States v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir.

2005).

      There is a dispute between the parties regarding whether Serrano-Pinero

admitted to the drug quantity used in his Guidelines sentence. Even assuming that

Serrano-Pinero did not admit to the drug quantity, both his Booker constitutional

and statutory claims fail because Serrano-Pinero cannot meet the third prong of the

plain-error test. There is not “a reasonable probability of a different result if the

[G]uidelines had been applied in an advisory instead of binding fashion by the

sentencing judge in this case.” See Shelton, 400 F.3d at 1332; Rodriguez, 398

F.3d at 1301. Although the district court sentenced Serrano-Pinero at the low end

of his Guidelines range, that is not enough to show the district court would have

imposed a different sentence under an advisory regime. See United States v.

Fields, 408 F.3d 1356, 1361 (11th Cir. 2005). There is nothing in the record

indicating the district court would have imposed a different sentence if the

                                           3
Guidelines would have been treated as advisory. Thus, the district court did not

commit Booker plain error, either constitutional or statutory, and we affirm

Serrano-Pinero’s sentence.

      OPINION REINSTATED IN PART; AFFIRMED IN PART.




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