FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 13, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-16436

Non-Argument Calendar

________________________

D. C. Docket No. 04-00069-CR-3-LAC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JONATHAN AARON TOMPKINS, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

 (September 13, 2005)

Before BIRCH, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

Jonathan Aaron Tompkins appeals his 103-month sentence pursuant to a

guilty plea for possession of firearm by a convicted felon, in violation of 18 U.S.C.
 In Almendarez-Torres, the Supreme Court held that the government was not required to 1

allege in an indictment or prove beyond a reasonable doubt a defendant’s prior convictions for a

district court to use those convictions for the purpose of sentence enhancement. Almendarez-Torres,

523 U.S. at 241, 243-44, 247-48, 118 S. Ct. at 1229, 1230-31, 1232-33.

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§ 922(g)(1). He concedes that, in his plea agreement, he waived his Sixth

Amendment right to have a jury find sentencing facts beyond a reasonable doubt. 

He argues, however, that the district court plainly erred by applying the United

States Sentencing Guidelines as mandatory, in light of Blakely v. Washington, 542

U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. ___, 125

S. Ct. 738 (2005), and asserts that the district court’s express limitation of its

sentencing decision to factors within the guidelines was held unconstitutional in

Booker. He further asserts that, although the district court commented that the

sentence satisfied the 18 U.S.C. § 3553(a) purposes of punishment and deterrence,

it did not indicate whether the sentence was designed to satisfy other § 3553(a)

interests, such as rehabilitation, educational training, or medical care. He also

contends that the district court violated his Sixth Amendment rights by relying on

his prior convictions to enhance his convictions, asserting that Almendarez-Torres

v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998) is no longer good law in 1

light of Shepard v. United States, 544 U.S. ___, 125 S. Ct. 1254 (2005). 

In his plea agreement, Tompkins waived his Booker Sixth Amendment right

to have a jury find the sentencing facts beyond a reasonable doubt. R1-29 at 5. 
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He concedes plain error review as to the Booker statutory issue regarding the

district court’s application of the guidelines as mandatory. To prevail under a

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

error is plain; and (3) that the plain error affected substantial rights. United States

v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005). Once the appellant proves

these three elements, we may notice the error only if it “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. at 1329

(internal citation omitted). 

Based on the Supreme Court’s holdings in Booker, there can be two

Booker errors: (1) a Sixth Amendment, constitutional, error in the imposition of a

sentencing enhancement based on judicial findings that go beyond the facts

admitted by the defendant or found by the jury, and (2) a statutory error in the

imposition of a sentence under a mandatory guidelines system. Id., 400 F.3d at

1330-31. Even in the absence of a Booker constitutional error, a district court errs

by imposing a sentence under a mandatory Guidelines scheme. See id.

A plain error may be established under the first two prongs of the plain error

test when a statutory error exists; that is, the defendant is sentenced under

mandatory rather than advisory guidelines. Id. The defendant's burden with

respect to the third prong, however, “is to show that the error actually did make a
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difference.” United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.), cert.

denied, U.S. , 125 S. Ct. 2935 (2005). “[I]n applying the third prong, 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.” Id. at 1301. Reasonable probability of a different result means a

probability “sufficient to undermine confidence in the outcome.” Id. at 1299

(citation and punctuation omitted). Under the fourth prong, we consider the plain

error’s affect on the judicial proceedings and look for such factors as the district

judge’s express desire to impose a sentence different than that imposed. Shelton,

400 F.3d at 1333-34. We have consistently held that a sentence even at the low

end of the guideline range, standing alone, is insufficient to carry a defendant’s

burden demonstrating a reasonable probability of a lesser sentence under advisory

guidelines. See United States v. Fields, 408 F.3d 1356, 1361 (11th Cir. 2005)

(holding that the fact that the defendant was sentenced at the bottom of the

mandatory guideline range, without more, is insufficient to satisfy the third prong’s

requirement that the defendant show a reasonable probability of a lesser sentence

under an advisory guideline system; accord United States v. Cartwright, 413 F.3d

1295, 1301 (11th Cir. 2005)).

 Even with the government’s concession that district court committed
5

Booker error that was plain by applying the sentencing guidelines as binding,

Tompkins fails to set forth any evidence to show that 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. See Shelton, 400 F.3d at 1330-

31. The district court sentenced Tompkins to a term of imprisonment for 103

months, which is within the middle of the guideline range. The district judge

explained: “This is at the midpoint of the guideline range, the Court not finding

any aggravating or mitigating circumstances not already accounted for by the

guidelines. I do find this meets the goals of punishment and hopefully will act as a

deterrent to anyone else who might consider similar criminal activity.” R4 at 10. 

The district court said nothing else, leaving no indication or expression of

“reasonable probability” that it would have sentenced Tompkins to a lesser

sentence had the guidelines been merely advisory. 

Tompkins also cites no authority requiring the district court’s express

statement that it considered each penal purpose listed in § 3553(a), as opposed to

simply stating that the sentence meets “the goals of punishment and hopefully will

act as a deterrent.” Id. at 10-11; see, e.g., United States v. Robles, 408 F.3d 1324,

1328 (11th Cir. 2005) (per curiam) (stating that even post-Booker, “we would not

expect the district court in every case to conduct an accounting of every § 3553(a)
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factor . . . and expound upon how each factor played a role in its sentencing

decision”). There was no reversible, statutory Booker error in sentencing

Tompkins under a mandatory guideline scheme because he failed to show that the

plain error affected his substantial rights. See Fields, 408 F.3d at 1361.

Although Tompkins also argues that the use of prior convictions to enhance

the sentence is unconstitutional and that Almendarez-Torres is no longer good law

in light Shepard, his plea agreement waiver also covers this issue. Further, we

have consistently held that held that Almendarez-Torres remains good law until it

is overruled by the Supreme Court. See United States v. Camacho-Ibarquen, 410

F.3d 1307, 1316 n.3 (11th Cir. 2005) (per curiam) (“Although recent decisions,

including Shepard, . . . may arguably cast doubt on the future prospects of

Almendarez-Torres’s holding regarding prior convictions, the Supreme Court has

not explicitly overruled Almendarez-Torres.”).

For the reasons stated above, Tompkins’s sentence is

AFFIRMED.