FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 July 15, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-10461

Non-Argument Calendar

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D. C. Docket No. 03-20682-CR-JLK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR JOSEPH PINARGOTE-RAMIREZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(July 15, 2005)

ON REMAND FROM THE SUPREME COURT 

OF THE UNITED STATES

Before MARCUS, PRYOR and COX, Circuit Judges.

PER CURIAM:
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This case is before us following the Supreme Court’s order vacating the

judgment of this court and remanding the case for further consideration in light of

United States v. Booker, 125 S. Ct. 738 (2005). Pinargote-Ramirez v. United States,

125 S. Ct. 1741 (2005). 

Following remand, we entered an order directing the parties to submit

supplemental letter briefs specifically addressing: (1) a description of where, when,

and how any Booker issue was first raised; and (2) any argument about whether and

how the Booker decision applies to the present case, and what action the court should

take. 

Pinargote asserts that a Booker issue was first raised in his initial brief before

this court in which he argued that the district court “denied the defendant the

individualized, discretionary sentencing upon which the constitutionality of the

guidelines, under the Fifth Amendment, depends.” Appellant’s Br. at 6. Pinargote

does not contend that he raised any such issue before the district court, and he

concedes that under United States v. Fields, No. 04-12486, __ F.3d __ (11th Cir.

2005), “the mere fact that Pinargote received a guideline-minimum sentence is

insufficient to meet his plain error burden.” Appellant’s Supp. Letter Br. at 5.

The Government argues that Pinargote did not properly preserve any Booker

argument before this court or the district court. The Government’s position is that the
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argument raised in his initial brief was designed to attack the district court’s

application of the minor role guideline, but did not adequately raise any sentencing

issues or constitutional objections involving the Fifth or Sixth Amendment in relation

to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), or the district

court’s authority to engage in fact-finding. And, in any event, because no Booker

issue was raised before the district court, our review would only be for plain error. 

We agree with the Government that because Pinargote raised no Booker issue

before the district court our review is only for plain error. See United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain error review,

Pinargote bears the burden of establishing (1) error, (2) that is plain, which (3) affects

his substantial rights. Id. If these three conditions are met, the court may 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. Though Pinargote

can likely satisfy the first two prongs of this test, see Johnson v. United States, 520

U.S. 461, 468, 117 S. Ct. 1544, 1549 (1997), he cannot demonstrate that any error

affected his substantial rights because he cannot point to anything in the record which

shows that he would have received a different sentence but for the mandatory nature

of the guidelines. See Rodriguez, 398 F.3d at 1301. Our previous decision affirming

Defendant’s conviction and sentence is, therefore, reinstated.

JUDGMENT AFFIRMING CONVICTION AND SENTENCE REINSTATED.