FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

November 23, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-10011

Non-Argument Calendar

________________________

D. C. Docket No. 04-20240-CR-DLG

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

MARIA PAEZ-APONTE, 

a.k.a. Maria Araujo, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(November 23, 2005)

Before: TJOFLAT, ANDERSON and CARNES, Circuit Judges.

PER CURIAM:
2

Maria Paez-Aponte (“Paez”) appeals her 30-month sentence for conspiracy

to commit money laundering, in violation of 18 U.S.C. § 1956(h). According to

the Presentence Investigation Report (“PSI”), Paez’s husband was the “second in

command” of a large methylenedioxmethamphetamine (“MDMA”) smuggling

conspiracy, in which Paez herself was employed as a “money transmitter,” who

made wire transfers of money to suppliers. 

Paez was sentenced at the same time as two of her female co-defendants,

both of whom also had pled guilty to being “money transmitters” in the drug

conspiracy. The court granted one of them, a girlfriend of one of the other

conspirators, a minor-role reduction, and, in the course of doing so explained: 

I’m always concerned about individuals who commit offenses when . .

. they have romantic involvement [with a co-defendant]. I see a

number of young ladies who but for being involved with a particular

boyfriend or husband probably wouldn’t have committed a crime. 

Usually it evidences itself in drug cases when the young lady has a

quantity of drug which equals a ten-year or five-year minimum

mandatory [sentence], and there’s frankly not much the [c]ourt can do

in that regard. This case is a little different. The guidelines are much

lower.

The court, however, denied Paez’s request for a minor-role reduction, stating: 

The argument that I’ve heard in the other cases was that the person

was the girlfriend . . . and didn’t have full knowledge of all of the

details . . . In this case, you have agreed that she was in fact aware of

the drug link and was more familiar with the day-to-day operation and

had more knowledge of the criminal acts and therefore is subject to

more of a sanction because of that overall knowledge.
By failing to argue, in her brief, that the district court committed constitutional error,

1

Paez has abandoned this issue, and we will not address it. See United States v. Ford, 270 F.3d

1346, 1347 (11th Cir. 2001) (noting our “well established rule . . . that issues and contentions not

timely raised in the briefs are deemed abandoned”). Moreover, even if we were to address the

issue, no constitutional plain error occurred because Paez admitted to all of the facts used to

enhance her sentence. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). 

Paez’s due process argument is foreclosed by our decision in the Rodriguez case as well

as all of our many post-Rodriguez decisions affirming pre-Booker sentences because of the

3

Paez contends that the district court erred, in light of United States v.

Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621(2005), by sentencing her

under a mandatory guidelines scheme, and argues that had the guidelines been

advisory the district court likely would have sentenced her more leniently. She

points out that the court: (1) expressed concern about sentencing individuals who

commit crimes because of their romantic involvements with more culpable

defendants; and (2) might have considered more mitigating evidence under an

advisory scheme, such as the facts that Paez recently had given birth to a child and

would not have been involved in the conspiracy but for her husband. She notes

that, when it sentenced her, the district court did not consider the 18 U.S.C.

§ 3553(a) factors in relation to her sentence as a whole, as is now required after

Booker. Finally, she contends that, because the remedy dictated in Booker was not

foreseeable, applying the Booker remedy after she was sentenced violated her due

process rights, because she would have “approached her sentencing . . . differently

if she could have had the benefit of Booker.”1
failure of the defendant to make a timely objection in the district court and inability to meet the

third-prong of the plain error test. United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005); 

see, e.g., United States v. Taylor, 417 F.3d 1176 (11th Cir. 2005); United States v. Cartwright,

413 F.3d 1295 (11th Cir. 2005); United States v. Camacho-Ibarquen, 410 F.3d 1307 (11th Cir.

2005); United States v. Fields, 408 F.3d 1356 (11th Cir. 2005); United States v. Burge, 407 F.3d

1183 (11th Cir. 2005); cf. United States v. Duncan, 400 F.3d 1297, 1306–08 (11th Cir. 2005)

(retroactive application of the Booker remedial provisions does not deprive a defendant of due

process). 

4

Because Paez failed to lodge an objection to her sentence on Booker-related

grounds in the district court, we will review this issue only for plain error. See

United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (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 judicial proceedings.” Id. (internal

quotations omitted). 

In Booker, the Supreme Court held that the mandatory nature of the federal

sentencing guidelines coupled with the use of extra-verdict enhancements rendered

the guidelines incompatible with the Sixth Amendment’s guarantee of a right to a

jury trial. Booker, 543 U.S. at ___,125 S.Ct. at 749-51. The Court ruled that

sentencing courts nevertheless must consider the guidelines in an advisory manner,

as well as the factors set forth in § 3553(a), when imposing sentences. Id. at ___,
5

125 S.Ct. at 765. Under § 3553(a), sentencing should take into account, among

other things, the nature and circumstances of the offense, the history and

characteristics of the defendant, the need for adequate deterrence, protection of the

public, the pertinent Sentencing Commission policy statements, and the need to

avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a).

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

denied 125 S.Ct. 2935 (2005), we held that under Booker, “the Sixth Amendment

right to trial by jury is violated where under a mandatory guidelines system a

sentence is increased because of an enhancement based on facts found by the judge

that were neither admitted by the defendant nor found by the jury.” We have since

held that there are two types of Booker errors: (1) constitutional error resulting

from enhancements based on judicial fact-finding, and (2) statutory error resulting

from mandatory application of the guidelines. See United States v. Shelton, 400

F.3d 1325, 1330-31 (11th Cir. 2005). Accordingly, error that is plain exists where

a district court applies extra-verdict enhancements and imposes a sentence after

treating the guidelines as mandatory. Id. 

We further held in Rodriguez that, in order to establish the error affected his

substantial rights, the third prong of plain error showing, a defendant must show 

“a reasonable probability of a different result if the guidelines had been applied in
6

an advisory instead of binding fashion by the sentencing judge in this case.” 

Rodriguez, 398 F.3d at 1301. Where “[t]he record provides no reason to believe

any result is more likely than the other,” a defendant cannot prevail under plain

error review. Id. That is the situation in this case. 

While the district court did grant a co-defendant a role reduction because she

was a girlfriend of one of the ringleaders, the court was careful to distinguish that

situation from Paez’s, who was married to one of the male co-conspirators. While

asking for a minor role reduction, counsel for Paez acknowledged that her

“situation was a little different. She was married to Mr. Araujo, and because of

that of course her knowledge of what was going on was considered to be more

extensive, so she is—we’re not objecting to the six-level increase for her

understanding that this was coming from drugs.” Counsel made it clear that his

request for lenient treatment was based solely on the fact that Paez was a wife, and

as such “she really was under a—more of an obligation to do what it was that she

was told to do.”

The district court’s was far from sympathetic to that position. Responding to

the idea that wives should be treated more leniently than their husbands, the court

said: 

Why is that? The argument that I’ve heard in the other cases was that

the person was the girlfriend, so to speak, and didn’t have full knowledge of
7

all the details, didn’t know about the involvement of drugs, et cetera. 

 In this case, you have agreed that she was in fact aware of the drug

link and was more familiar with the day-to-day operation and had more

knowledge of the criminal acts and therefore is subject to more of a sanction

because of that overall knowledge. 

The government bolstered the court’s position by pointing out facts showing how

involved Paez was in the drug trafficking and money laundering. Counsel for Paez

told the court “we’re not disputing those facts,” but argued that “her position as the

wife made her more susceptible to being told to do these things.”

The district court never expressed any sympathy for the argument that wives

who engage in drug trafficking and money laundering crimes should receive more 

lenient treatment on the theory that wives obey their husbands. There is nothing in

the record to indicate that but for the guidelines being mandatory the court would

have given Paez a lower sentence. 

Nor is there anything in the record to indicate that but for the mandatory

nature of the guidelines at the time the court would have given her a more lenient

sentence because she recently had given birth. That fact was not mentioned in the

sentence hearing or in the PSI. Paez has failed to carry her burden of showing

plain error third-prong prejudice. 

AFFIRMED.