Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 03-2655

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS VAZQUEZ-MOLINA, A/K/A PICOTA,

Defendant, Appellant.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before

 Selya, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Charles F. Willson and Nevins & Nevins LLP, by appointment of

the court, on brief for appellant.

Carlos Vazquez-Molina , pro se ipso, on supplemental brief for

appellant.

H.S. Garcia, United States Attorney, Nelson Pérez Sosa and

Thomas F. Klumper, Assistant United States Attorneys, on brief for

appellee.

September 15, 2005
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Per Curiam. On November 15, 2004, we affirmed the

conviction and sentence of defendant-appellant Carlos VazquezMolina on a charge that he had conspired to possess a controlled

substance (namely, cocaine) with intent to distribute. See United

States v. Vazquez-Molina, 389 F.3d 54, 55 (1st Cir. 2004).

Although we subsequently granted defense counsel's motion to

withdraw, the appellant, acting pro se, nevertheless petitioned for

certiorari. While his petition was pending, the Supreme Court

decided United States v. Booker, 125 S. Ct. 738 (2005). The Court,

in a routine order, thereafter granted the petition for certiorari

pro forma, vacated our judgment, and remanded for further

consideration of the sentence in light of Booker. See VazquezMolina v. United States, 125 S. Ct. 1713 (2005).

We reappointed counsel and directed the parties to submit

supplemental briefs and proffers. Having received and reviewed

those materials — the appellant has submitted both a counseled

brief and a pro se brief — we again uphold the appellant's sentence

and reinstate our earlier judgment.

We assume the reader's familiarity with our previous

opinion in this case and, accordingly, do not rehearse either the

offense conduct or the procedural history. Suffice it to say that

the appellant now argues, in substance, that his case should be

remanded for resentencing because the district court sentenced him

under the mandatory guidelines system then in effect. We agree
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that such an error occurred. The appellant, however, did not

preserve this claim of error below; thus, his asseverational array

is reviewed solely for plain error. See United States v. Guzmán,

___ F.3d ___, ___ (1st Cir. 2005) [No. 04-1888, slip op. at 9];

United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).

Under that rubric, the appellant must show, among other things,

some "reasonable probability" that the district court would have

imposed a more lenient sentence had it realized that the sentencing

guidelines could be treated as advisory. See Antonakopoulos, 399

F.3d at 75.

In this type of case, we are not "overly demanding as to

proof of probability." United States v. Heldeman, 402 F.3d 220,

224 (1st Cir. 2005). Still, an appellant must offer something that

has persuasive force. See id. (requiring, at a bare minimum, a

"reasonable indication that the district judge might well have

reached a different result under advisory guidelines").

In an effort to satisfy this requirement, the appellant

argues that the sentencing court gave insufficient weight to his

personal history, characteristics, and circumstances, see 18 U.S.C.

§ 3553(a)(1) (emphasizing, as sentencing factors, "the history and

characteristics of the defendant"), and would lean more heavily on

those factors the second time around. The main difficulty with

this argument is that, at the original sentencing hearing, the

appellant's counsel fully explicated these matters and vigorously
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attempted to exploit them. The attorney noted, among other things,

that the appellant was on medication and receiving psychiatric

treatment; that he had attempted suicide on four separate

occasions; that he was suffering from a depressive disorder; that

his wife had divorced him; and that he had lost custody of his

children.

The district court mulled this plea, see Vazquez-Molina,

389 F.3d at 59-60 (rejecting claim that sentencing court did not

duly consider section 3553(a)(1) factors), but was obviously

unimpressed. It said nothing to indicate that it thought those

considerations deserved substantial weight. To the contrary, the

court, faced with a guideline sentencing range (GSR) of 121-151

months, chose to sentence the appellant at the midpoint of the

range (136 months). The court did not make this choice casually;

it reasoned that "[s]ince the defendant is [a] second offender, a

sentence in the middle of the guideline range will serve the

objectives of punishment and deterren[ce]."

The fact that the district court, mindful of essentially

the same arguments that the appellant presses here, imposed a

sentence in the middle of the applicable GSR, rather than at its

nadir, is revealing. If, indeed, the court believed that the

appellant's personal history, offender characteristics, and

circumstances bore significantly on the level of punishment, it was

free, pre-Booker, to sentence at the bottom of the GSR. See, e.g.,
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United States v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992). The

court's eschewal of that option is a strong indication that,

although it found the appellant's personal history,

characteristics, and circumstances to be worth mentioning, it did

not regard them as justifying a lower sentence. See United States

v. McLean, 409 F.3d 492, 505 (1st Cir. 2005); United States v.

González-Mercado, 402 F.3d 294, 303-04 (1st Cir. 2005).

The court's uncompelled selection of a higher sentence,

coupled with the fact that it did not in any way, shape, or form

hint that it was dissatisfied either with the extent of the

sentence selected or with the sentencing options available to it,

combine to defeat the appellant's claim. On this record, the

appellant has not shown a reasonable probability that the district

court, had it realized that the guidelines were advisory, would

have imposed a more lenient sentence.

The appellant advances three additional arguments: (i)

that the district court's resort to certain upward adjustments in

calculating the GSR violated his Sixth Amendment rights; (ii) that

the court committed structural error by utilizing a mandatory

guidelines system; and (iii) that the court's boosting of his

offense level based on facts not charged in the indictment resulted

in a Fifth Amendment violation. We find none of these arguments

persuasive.
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In calculating the appellant's GSR, the sentencing court

applied two-level increases for his role in the offense, USSG

§3B1.1(c), and for his possession of a firearm during a drugtrafficking crime, id. §2D1.1(b)(1). See Vazquez-Molina, 389 F.3d

at 56. The appellant attempts to challenge these upward

adjustments on Sixth Amendment grounds. That challenge is doomed

to failure: "[n]othing in Booker requires submission of facts to

a jury so long as the Guidelines are not mandatory."

Antonakopoulos, 399 F.3d at 80. In other words, "the Sixth

Amendment is not violated simply because a judge finds sentencing

facts under the guidelines; rather, the error is only that the

judge did so pursuant to a mandatory guidelines system." United

States v. Martins, 413 F.3d 139, 152 (1st Cir. 2005).

The appellant's claim of structural error is hopeless.

Structural errors are those that "undermine the fairness of

criminal proceedings as a whole" and, thus, must "be corrected

regardless of an individualized showing of prejudice to the

defendant." Antonakopoulos, 399 F.3d at 80 n.11. A Booker error

is not a structural error. See United States v. Villafane-Jimenez,

410 F.3d 74, 86 n.15 (1st Cir. 2005) (per curiam); Antonakopoulos,

399 F.3d at 80 n.11.

Finally, we turn to the appellant's Fifth Amendment

argument. The merits of that argument are dubious, but we decline

to address them for two reasons. First, the Supreme Court limited
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the scope of its remand order to the appellant's Booker challenge.

See Vazquez-Molina, 125 S. Ct. at 1713. In the absence of

extraordinary circumstances — and none are present here — we are

bound to adhere to the dimensions of that order. See Kotler v. Am.

Tobacco Co., 981 F.2d 7, 13 (1st Cir. 1992) (deciding that, in the

absence of exceptional circumstances, an appellate court is limited

in its inquiry to matters within the scope of a remand from the

Supreme Court); see also United States v. Estevez, ___ F.3d ___,

___ (1st Cir. 2005) [No. 03-1496, slip op. at 8-9] (applying the

rule in Kotler to a Booker remand). Second, the appellant

presented this argument only in skeletal form. Since he failed to

develop the argument in his brief, he is deemed to have abandoned

it. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

We need go no further. Because the appellant has failed

to show that there is any likelihood that the district court, were

it operating under an advisory guidelines system, would have

imposed a milder sentence, we again affirm the sentence and direct

that our earlier judgment be reinstated.

So Ordered.