FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 JUNE 10, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-13281

Non-Argument Calendar

________________________

D.C. Docket No. 03-00028-CR-1-WLS-1

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

ROGERS LEE JACKSON,

 Defendant-Appellant.

__________________________

Appeal from the United States District Court for the

Middle District of Georgia

_________________________

(June 10, 2005)

Before TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

Rogers Lee Jackson was indicted for five counts of possession with intent to

distribute more than five grams of crack, in violation of 21 U.S.C. § 841. 
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The evidence at trial established that the DEA organized controlled buys

using a confidential informant (“CI”) who would call Jackson’s cell phone and

arrange to purchase crack. In most cases, the meeting occurred at Jackson’s home

and each phone call and meeting was tape recorded. Over defense counsel’s

objections, the CI identified Jackson’s voice on the tape, and identified Jackson as

the person with whom he met to purchase crack. According to the DEA forensic

chemist, the total weight from the five exchanges involving the CI was 58 grams

of crack. In an interview after his arrest, Jackson identified his cocaine sources,

and informed agents that he purchased approximately one kilogram of powder

cocaine per week for a year, which he converted to crack. 

After the government rested, and Jackson decided not to testify, defense

counsel explained that he intended to call no witnesses because “[w]hile we have

subpoenaed six witnesses and as I understand that are available and outside the

courtroom ready to testify, in light of further discussion with Mr. Jackson, we

would present no evidence.” The jury convicted Jackson of all five counts. 

The probation officer prepared a presentence investigation report (“PSI”),

grouping the five counts together and assigning a base offense level of 36 under

U.S.S.G. §§ 3D1.2 and 2D1.1(c)(2) because Jackson was held accountable for

more than 500 grams, but less than 1.5 kilograms of crack. Jackson’s resulting
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guidelines range was 188 to 235 months imprisonment. Both Jackson and the

government objected to the amount of drugs attributed to Jackson. 

At sentencing, the government presented testimony from several people

who stated that they had been involved in drug deals with Jackson. Tracey Timly

admitted that he used to purchase crack from Jackson, and that he typically made

one purchase each week of two or three cookies each time with Jackson as his only

supplier. He explained that a cookie weighed about 25 grams and cost about $650

to $750. Timly further explained the process by which powder cocaine was

converted to crack. Calvert Brown testified that he purchased crack from Jackson

two or three times by contacting Jackson via cell phone. 

Nevoria Jackson stated that in February 2002 he sold 20 cookies to Jackson

for $5,000. Crystal Young testified that she purchased crack from Jackson over a

few years and that she usually bought about $20 worth at a time, but that she had

seen larger quantities at Jackson’s home. 

Jackson again decided not to testify, and defense counsel did not proffer any

other evidence. The government argued that the court should consider these drug

transactions as relevant conduct, and it claimed that it was proper to offer

testimony on the conversion from powder to crack through a lay person familiar

with the process. According to the government, even using conservative estimates
4

on the amount of yield from the conversion process, Jackson was responsible for

more than 1.5 kilograms of cocaine, which was supported by Jackson’s own

statements to DEA and ATF agents after his arrest. Defense counsel responded

that there was no scientific evidence to support the conversion amounts, and the

testimony of a drug trafficker was not sufficient. 

The court took the issue under advisement and continued sentencing. When

sentencing reconvened, the court explained that a one-to-one ratio of powder to

crack cocaine was not proper, and that the government failed to meet its burden

establishing the accurate ratio. Accordingly, the court overruled the government’s

objection to the drug quantity. The court also overruled Jackson’s objection to

drug quantity, finding that Jackson was responsible for the 58 grams proven at

trial plus relevant conduct in the sales to Brown and Timly and the purchase from

Nevoria Jackson. The court sentenced Jackson to concurrent 235-month terms of

imprisonment on each count, and concurrent five-year terms of supervised release

on each count. Jackson now appeals, raising two issues: (1) his sentence is

unconstitutional in light of Blakely v. Washington, 542 U.S. –, 124 S.Ct. 2531,

159 L.Ed.2d 403 (2004), and (2) trial counsel was constitutionally defective. 

Because we conclude that the record is not sufficiently developed for us to address
Ineffective assistance of counsel is a mixed question of law and fact that this court reviews

1

de novo. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003); United States v. Bender,

290 F.3d 1279, 1284 (11th Cir. 2002). This court generally does not consider ineffective-assistanceof-counsel claims on direct appeal unless the record is sufficiently developed. Freixas, 332 F.3d at

1319 n.3; Bender, 290 F.3d at 1284. Here, the record is not sufficiently developed for this court to

address the claim. Cf. Freixas, 332 F.3d at 1319 n.3 (finding the record sufficiently developed

because the court questioned the defendant concerning counsel during the plea colloquy and held a

hearing on the defendant’s request to withdraw her plea based on counsel’s alleged failure to discuss

the case with her). Jackson may bring this claim in a post-conviction collateral appeal under 28

U.S.C. § 2255. 

5

Jackson’s ineffective-assistance-of -counsel claim on direct appeal, we need not

discuss that issue.1

Jackson argues that his sentences are unconstitutional because he was held

accountable for conduct not charged in the indictment or proven to a jury beyond a

reasonable doubt, in violation of Blakely. 

When a defendant fails to object to an error before the district court, this

court reviews the argument for plain error. United States v. Hall, 314 F.3d 565,

566 (11th Cir. 2002); see also United States v. Olano, 507 U.S. 725, 731-32, 113

S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). “Plain error occurs where (1) there is

an error; (2) that is plain or obvious; (3) affecting the defendant’s substantial

rights in that it was prejudicial and not harmless; and (4) that seriously affects the

fairness, integrity, or public reputation of the judicial proceedings.” Hall, 314

F.3d at 566; Olano, 507 U.S. at 732. Here, although Jackson objected to the
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quantity of drugs for which he was held accountable, he did not do so based on

Blakely. Accordingly, we apply plain error review. 

The U.S. Supreme Court in the landmark case of Blakely v. Washington,

124 S.Ct. 2531 (2004), reversed an upward departure imposed pursuant to the

State of Washington’s state sentencing guidelines. The Court applied the rule in

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d

435 (2000), that “[o]ther than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 124 S.Ct. at

2536-38. In reversing the upward departure, the Supreme Court held that the

“relevant statutory maximum for Apprendi purposes is the maximum a judge may

impose based solely on the facts reflected in the jury verdict or admitted by the

defendant.” Id. at 2537. The Court explicitly noted “[t]he Federal Guidelines are

not before us, and we express no opinion on them.” Id. at 2538 n.9. 

Thereafter, the Supreme Court issued its decision in United States v.

Booker, 543 U.S. –, 125 S.Ct. 738, – L.Ed.2d – (2005), finding “no distinction of

constitutional significance between the Federal Sentencing Guidelines and the

Washington procedures at issue” in Blakely. Booker, 125 S.Ct. at 749. Resolving

the constitutional question left open in Blakely, the Court held that the mandatory
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nature of the federal guidelines rendered them incompatible with the Sixth

Amendment’s guarantee to the right to a jury trial. Id. at 749-51. In extending its

holding in Blakely to the Guidelines, the Court explicitly reaffirmed its rationale

in Apprendi. Id. at 756.

In a second and separate majority opinion, the Court in Booker concluded

that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of

1984, the appropriate remedy was to “excise” two specific sections—18 U.S.C.

§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)

and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de

novo review of departures from the applicable guideline range)—thereby

effectively rendering the Sentencing Guidelines advisory only. Id. at 764. The

Court explained that district courts are not bound to apply the Sentencing

Guidelines, but “must consult those Guidelines and take them into account when

sentencing.” Id. at 767. The Court then announced that, under the remaining

provisions of § 3742, courts of appeals must review sentences for

“unreasonable[ness].” Id. at 765. The Court further indicated that both its “Sixth

Amendment holding and . . . remedial interpretation of the Sentencing Act” must

be applied to “all cases on direct review.” Id. at 769. The Court cautioned,

however, that not every sentence will give rise to a Sixth Amendment violation,
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nor would every appeal lead to a new sentencing hearing. Id. The Court

instructed reviewing courts to apply “ordinary prudential doctrines, determining,

for example, whether the issue was raised below and whether it fails the ‘plainerror’ test.” Id. 

We conclude that Jackson cannot show plain error in the imposition of his

sentence. See United States v. Rodriguez, 398 F.3d 1291 (11th Cir.), petition for

cert. filed, No. 04-1148 (Feb. 23, 2005) (acknowledging that a Booker error was

plain, but holding that, in order to show that his substantial rights were affected

under plain error review, the appellant must show that his sentence would have

been different but for the court’s use of the mandatory guidelines). There is no

evidence in the record to show that Jackson’s sentence would have been different

but for the mandatory guidelines. Accordingly, we AFFIRM Jackson’s

convictions and sentences.
 Jackson fails to establish the third prong of the plain error standard because he has not 1

shown (from whatever the district judge may have said on the record at his sentencing hearing) 

“that his sentence would have been different but for the court’s use of the mandatory guidelines.”

Ante at _____. As a practical matter, such a showing is - in this case and in almost every case of

Booker plain error review - impossible to make.

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Tjoflat, Circuit Judge, concurring specially:

As I explain in my dissent to the court’s refusal to rehear Rodriguez en

banc, the error in a case such as this—where the district court enhances the

defendant’s sentence on the basis of facts not admitted by the defendant or found

by a jury—is structural error, and the third prong of the plain-error test is,

therefore, inapplicable. See United States v. Rodriguez, — F.3d —, 2005 WL

895174 (11th Cir. Apr. 19, 2005) (Tjoflat, J., dissenting from the denial of

rehearing en banc). Accordingly, the court should consider whether the error 1

“seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings,” United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779,

123 L. Ed.2d 508 (1993), and in this case, it does. I concur in the court’s

judgment because we are Rodriguez bound.