                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2326
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Luciano Martinez-Figueroa,               *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: April 30, 2005
                                  Filed: January 23, 2006
                                   ___________

Before LOKEN, Chief Judge, McMILLIAN* and BEAM, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       After a jury convicted Luciano Martinez-Figueroa of conspiracy to distribute
and possession with the intent to distribute more than 100 kilograms of marijuana, the
district court** sentenced him to 97 months in prison. Martinez-Figueroa appealed his
conviction, raising two evidentiary issues. We affirmed. United States v.

      *
       The Honorable Theodore McMillian died on January 18, 2006. This opinion
is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E.
Judge McMillian concurred in the opinion before his death.
      **
       The HONORABLE RICHARD E. DORR, United States District Judge for the
Western District of Missouri.
Martinez-Figueroa, 363 F.3d 679 (8th Cir. 2004). Following the Supreme Court’s
decision in Blakely v. Washington, 542 U.S. 296 (2004), Martinez-Figueroa
petitioned the Supreme Court for a writ of certiorari, raising Sixth Amendment
sentencing issues. The Court granted the petition, vacated our judgment, and
remanded the case for further consideration in light of United States v. Booker, 543
U.S. 220 (2005). Having reconsidered Martinez-Figueroa’s sentence in light of
Booker, we reinstate our earlier opinion and affirm.

       Martinez-Figueroa argues that the district court violated his Sixth Amendment
rights by increasing his sentence based on the court’s finding of drug quantity and
imposition of a two-level enhancement for obstruction of justice. Martinez-Figueroa
did not object to these determinations on Sixth Amendment grounds in the district
court, and he did not raise sentencing issues on appeal to this court. Therefore, we
review this contention for plain error. United States v. Pirani, 406 F.3d 543, 550 (8th
Cir. 2005). Plain error review is governed by the four-part test of United States v.
Olano, 507 U.S. 725, 732-36 (1993). Here, the first two Olano factors are satisfied
because the district court committed error when it applied the Guidelines as
mandatory and that error is plain after Booker. However, Martinez-Figueroa fails to
satisfy the third factor because he cannot “show a ‘reasonable probability,’ based on
the appellate record as a whole, that but for the error he would have received a more
favorable sentence.” Pirani, 406 F.3d at 552.

        Though the district court sentenced Martinez-Figueroa at the bottom of the
then-mandatory guidelines range, this is insufficient, without more, to demonstrate a
reasonable probability that the district court would have imposed a lesser sentence
absent Booker error. In announcing Martinez-Figueroa’s sentence, the district court
stated: “I would agree with counsel that certainly the low end is appropriate here. It’s
a harsh result with the two-level enhancement, but it fits the facts.” There is nothing
in the record suggesting that the district court would have imposed a different sentence
had it considered the Guidelines advisory. “[W]here the effect of the [Booker] error

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on the result in the district court is uncertain or indeterminate -- where we would have
to speculate -- the appellant has not met his burden of showing a reasonable
probability that the result would have been different but for the error.” Pirani, 406
F.3d at 553 (quotation and citation omitted). Thus, Martinez-Figueroa’s sentence was
not the product of plain error.

      The judgment of the district court is affirmed.
                     ______________________________




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