Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 03-1067

UNITED STATES OF AMERICA,

Appellee,

v.

GERMAIN FLORENTINO,

Defendant, Appellant.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before

 Boudin, Chief Judge,

Torruella and Dyk, Circuit Judges. *

J. Thomas Kerner, by appointment of the court, on supplemental

brief for appellant.

Virginia M. Vander Jagt, Assistant United States Attorney,

Appeals Unit, and Michael J. Sullivan, United States Attorney, on

supplemental brief for appellee.

October 28, 2005
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Per Curiam. Germain Florentino pleaded guilty to drug

and immigration violations, and was found by the district court to

be a career offender, triggering a guideline sentencing range of

151 to 181 months. At sentencing, he argued that one of the prior

convictions which provided the basis for his career offender status

was improperly relied upon because it was the product of an unusual

two-tier trial system that has since been abolished in

Massachusetts; the district court disagreed and sentenced

Florentino to 151 months, the minimum permitted under the

guidelines, also rejecting a requested downward departure.

We affirmed the sentence in United States v. Florentino,

385 F.3d 60 (1st Cir. 2004), finding that Florentino's conviction

under the two-tier system, where he was convicted in the first tier

and lodged an "appeal" to the second tier which he later abandoned,

was properly counted as a prior conviction for the purposes of

U.S.S.G. § 4B1.1. Florentino petitioned the Supreme Court for

certiorari, which vacated our judgment and remanded in light of its

intervening decision in United States v. Booker, 125 S. Ct. 738

(2005). We invited supplemental briefing on the question whether

to remand to the district court for re-sentencing in light of

Booker.

Florentino's Booker claim is not preserved, despite his

claims to the contrary, and we review for plain error. United

States v. Antonakopolous, 399 F.3d 68, 76 (1st Cir. 2005). A
Florentino spends much of this portion of the brief arguing 1

that his contested conviction is not typical and thus should not

fall into the exception for "prior convictions" carved out of the

Apprendi line of cases. Almendarez-Torres v. United States, 523

U.S. 224 (1998). Our prior decision, finding that Florentino's

conviction from the two-tier system counted for the purposes of

federal sentencing, resolved the issue as to whether to count the

conviction. Florentino, 385 F.3d at 63-65. 

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Booker error is preserved if the defendant argued to the district

court that the guidelines were unconstitutional or that his

sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), or

Blakely v. Washington, 542 U.S. 296 (2004). Antonakopoulos, 399

F.3d at 76. Florentino made no such argument at his sentencing; he

did argue that it was not proper to use his prior conviction under

the two-tier system to classify him as a career offender, but his

grounds had nothing to do with the Sixth Amendment, Apprendi or

Blakely.1

Under the plain error test for a remand, the main

question is the likelihood that on remand a lower sentence might be

imposed, United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.

2005); the burden of showing such a likelihood lies with the

defendant. Id. Florentino presents several bases that he claims

demonstrate the likelihood of a lower sentence on remand, meeting

the third criterion for plain error. None is persuasive. 

Florentino first argues that his brother (also a

participant in the conspiracy to which Florentino pleaded guilty)

was found to be responsible for a far greater amount of drugs but
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received a lower sentence. This argument was made to and rejected

by the district judge. The disparity between these sentences is

easily attributable to the fact that Florentino was a career

offender and his brother was a first-time offender. Nor do we see

how it helps Florentino that the government, in opposing a

departure for him, urged in the alternative that he should

certainly not get a sentence lower than his brother. 

Florentino also says that the district judge

misapprehended his argument about the use of the disputed

conviction and thought he was arguing that the conviction should

not be used at all. Florentino claims to have been arguing that

the conviction should have been used only as an upward adjustment

to his criminal history level. Even if his position was

misunderstood, which is far from clear, nothing indicates that

regarding the point to the district judge would likely lead to a

lower sentence. 

Florentino next argues that the district judge sentenced

him at the lowest end of the applicable guidelines range, and that

at sentencing the judge stated, in choosing the lowest end of the

guidelines range, that Florentino's career offender status had

resulted in "a long sentence." A lowered sentence helps but does

not alone warrant a remand. United States v. Kornegay, 410 F.3d

89, 99-100 (1st Cir. 2005). Florentino also omits the district

judge's statement that "the defendant's criminal history scoring in
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this case does not overstate the severity of his criminal

behavior."

Florentino says that his brother received a departure

because as a deportable alien he was held in harsher conditions

than usual. But this is not a consideration that was forbidden or

discouraged by the guidelines. Compare Heldeman, 402 F.3d at 224.

If the circumstance is true as to Florentino, it could have been

argued at the original sentencing. Even now Florentino makes only

the bare assertion that he was held in such conditions as a

deportable alien, offering no detail. This claim does not furnish

the "specific facts" needed to justify a remand. Kornegay, 410

F.3d at 100. 

The sentence is affirmed.