# United Stat es Court of Appeals For the First C ircuit

No. 04-1681 UNITED STATES, Appellee,

v. ANDREW KORNEGAY, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Reginald C. Lindsay, U.S. District Judge ]

Before Torruella, Lynch, and Howard,

Circuit Judges .

Eduardo Masferrer , with whom Masferrer & Hurowitz, P.C. was on brief, for appellant. Timothy Q. Feeley , Assistant United States Attorney, with whom Michael J. Sulliva n , U nited States Attorney, and Theodore B. Heinrich , Ass istant United States Attorney, were on brief, for appellee.

June 9, 2005-2- HOWARD, Circuit Judge . Defendant Andrew Kornegay appeals fromhis conviction and sentence on one count of distributing five

or more grams of cocaine base in violati on of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(D). We affirm. I. We set forth the facts in the light most favorable to the verdict, see United States v. Capozzi , 347 F.3d327, 328 (1st Cir. 2003), and provide additional facts in our discussion of the legal issues. In the spring of 2001, an individual named Richard Chaney,

a convicted narcotics user, agreed to cooperate with the Bureau of Alcohol, Tobacco, and Firearms (ATF) in identifying narcotics and firearms distributors. In the summer of 2001, Chaney notified an ATF agent that he had been in con tact with Kornegay and could purchase a half-ounce of crack cocaine from him. Chaney knew Kornegay from their time as cellma tes in a Massachusetts jail during early 2001.

The ATF authorized Chaney to make a controlled purchase of crack cocaine from Kornegay. On August 20, 2001, Kornegay met Chaney on Geneva Avenue in Boston, Massachusetts, entered Chaney's car, and received a $470 payment fromhim. Several minutes later, Kornegay returned to the car and gave Chaney over 13 grams of crack cocaine. The purchase was monito red by audio and video surveillance equipment and was observedby several law enforcement officers.-3- Kornegay was not indicted for this sale until April 2003. The ATF delayed apprehending Kornegay because the agency wanted to preserve Chaney as an informant. Meanwhile, Kornegay served a 14- month state sentence for another drug conviction. At trial on the federal charge, Kornegay defended on the ground of mistaken identity. He claimed that his identical twin brother, Andre Kornegay, had sold the drugs to Chaney.

The government met this defense through the introduction of pictures of the Kornegay brothers taken in 2001 and the videotape of the drug deal. Chaney also identified Kornegay based

on their time together in prison. Additionally, Boston Police Detective Earl Perkins testified that, in the summer of 2001, he encounteredAndrew and Andre Kornegay on several occasions andthat he could distinguish them because Andrew had shorter hair and a fuller face than his brother and had fashioned his left eyebrow in

a distinctive "three-slash" style. Perkins also identified the individual in the videotape of the drug deal as Andrew Kornegay.

Afte r a five-day trial, the jury convicted Kornegay on

one count of distributing five or more grams of crack cocaine. The court calculated Kornegay's sentence range at between 78 and 97 months and sentenced Kornegay to the minimum of 78 month s' imprisonment. This appeal followed.-4- II. Kornegay presses five arguments on appeal. First, he claims that Detective Perkins' identification testimony should have been suppressed because he learned of Kornegay ' s distinguishing characteristics through unconstitutional investigatory stops conductedby the Boston police during the summer of 2001. Second, he contends that the admission of Detective Perkins' identification testimony violated Federal Rules of Evidence 701 and 403. Third, he argues that the prosecutor prejudicially vouched for Detective Perkins' credibility and appealed to the jury's emotions during the closing argument. Fourth, he posits that the district court erred in denying him certain downward departures under the Sentencing Guidelines. Final ly, he asserts that he is entitled to resentencing because the district court erroneously considered the Guidelines mandatory in determining his sentence.

A. Motion to Suppress Kornegay conten d s that the district court should have suppressedDetective Perkins' identification testimony as the fruit of several illegal Terrystops condu cted b y the Boston police during the summer of 2001. See Terry v. Ohio , 392 U.S. 1 (196 8 ) (permitting police to conduct investigatory stops based on reasonable suspicion of criminal activity). The government

coun ters that Kornegay's suppression motion was correctly denied because Kornegay failed to establish a connection between the1 Kornegay did not file the motion to suppress Perkins'

testimony until after the trial had begun. The court therefore helda hearing on the motion immediately prior to pe rmi tting Perkins to testify.

2 On two occasions, Kornegay was with his twin brother. -5- allegedly unconstitutional conduct and Detective Perkins' testimony. In a voi r di re before the district court, 1 Perkins testifiedthat, during the summer of 2001, he learned that Kornegay

was possibly a drug dealer and that he might be called upon to distinguish Kornegay from his identical twin brother in a subsequent prosecution. Therefore, throughout the summer, Perkins sought opportunities to encounter Kornegay so that he could positively identify him. Perkins testified that, on six occasions, he encountered Kornegay while Kornegay was talking to other police officers. 2 Each time Perkin s s aw Kornegay, Kornegay was already talking with the police, and therefore Perkins did not know the circumstances which led to the encounter. In particular, Perkins testified that he did not know whether the police had pat-frisked Kornegay and could not remember how many officers were pre sent. Perkins identified the locations where several of these encounters occurred. Aside from Detective Perkins' testimony, the only

ev idence before the district court was Kornegay's affidavi t-6-

submi ttedin conjunction with the suppression motion. In hi s affidavit, Kornegay stated:

During the summer of 2001, I was stopped on multiple occasions by members of the Boston Police Department . . . . I do not recall the names of the officers who stopped me. As many as 4 to 5 of ficers would approach me without warning and surround me. They would ask which K ornegay brother I was. I would identi f y myself and the officers would then pat-frisk me . . . . I never felt a s i f I was free to leave the police officers when they approached me. Kornegay did not testify concerning the stops or introd uce other

e vidence or witnesses in support of his motion. After P erkins ' testimony and argument, the district court orally denied the motion. Appellate review of a suppression moti on is bifurcated. The ultimate conclusion as to suppression as well as the determination that a given set of facts meets the legal standard for reasonable suspicion are reviewed de novo . But the trial court's findings of facts are reviewedfor clear error. See United States v. Charles , 213 F.3d 10, 17 (1st Cir. 2000). "We will up hold a denial of a motion to suppress if any reasonable view of the evidence supports it." United States v. Mendes-de Jesus , 85 F.3d 1, 2 (1st Cir. 1996). To succeed on a motion to suppress, a defendant must establish a nexus be tween t he Fourth Amendment violation and the3 If the defendant meets this initial burden, the evidence will

be suppressed unless the government proves that the evidence would have been inevitably discovered, was discovered through independent means, or was so attenuated fromthe illegality as to dissipate the taint of the unlawful conduct. See United States v. Nava-Ramirez , 210 F.3d 1128, 1131 (10th Cir. 2000); United States v. Kandick , 633 F.2d 1334, 1335 (9th Cir. 1980). -7- evidence that he seeks to suppress. 3 See Alderman v. United States , 394 U.S. 165, 183 (1969); United States v. Finucan , 708 F.2d 838 , 844 (1st Cir. 1983); see also United States v. King , 222 F.3d 1280, 1285-86 (10th Cir. 2000); Kandik , 633 F.2d at 1335; 6 W.R. LaFave, Search and Seizure , § 11.2(b) at 50 n.75 (4th ed. 2004) ( cit ing cases). Kornegay failed to meet this burden.

In his affidavit, Kornegay claimedthat he was unlawfully stoppedby Boston police officers on several occasions in the summer of 2001. He did not claim that Detective Perkin s was present at these stops. Nor did he claim that Perkins was a participant in an illegal stop. If Perkins was merely an uninvol ved observer, even to an illegal stop, Kornegay would hav e no plausible argument. Perkins testi f ied that he saw Kornegay at certain locations after Kornegay was already talking to the police, but that he did not know the circumstances that led to these encounters. Even after Perkins identifiedthe locations o f the encounters, Kornegay failed to produce evidence that any of the stops alludedto in his affidavit

were the ones identified by Perkins. As the district court stated, basedon the record before it, it could not conclude that the stops "in the affidavit [were] the same stops that Perkins [was] talking-8-

about." In the absence of proof that Perkins' testimony was based

on information gleaned from the allegedly unlawful stops, Kornegay failedto establish the nexus between the claimedFourth Amendment violation and the evidence he sought to suppress. See Nava-Ramirez , 210 F.3d at 1131-32 (affirming the denial of a motion to suppress because the defendant failed to show a connection between the alle g edly unconstitutional seizure and the evidence he sought to suppress).B. Lay Testimony

Kornegay next contends that th e dis trict court erred by admitting Detective Perkins' identification testimony as a lay opinion u nder Fed. R. Evid. 701. We review the district court's ruling for a manifest abuse of discretion. See United States v. Jackman , 48 F.3d 1, 4 (1st Cir. 1995).

Rule 701 allows for the admission of lay opinion testimony that is "(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding o f the w itness' testimony or the determination of a fact in issue." Kornegay challenges Perkins' testimony under both prongs. He claims that Perkins' observations during the summer of 2001 were so limited in duration that the incourt identification was not rationally basedon Pe rkins' perception. He also contend s that the testimony was unnecessary because Perkins' observations were brief and the jury hadsufficient-9-

other evidence of identity ( i.e. , photographs and the videotape of the crime) to make the identification.

Basedon Perkins' testimony, it is clear t hat t he identification was basedupon Perkins' personal observation and the recollection of concrete facts. Perkins described the e ncoun ters with Korne gay i n detail and provided specific recollections about Kornegay's distinguishing features. This testimony is adequate to establish that the identification was rationally based on Perkins' perception.

The next question is whether Perkins' testim ony was helpful to the jury. Here t he extent of Perkins' observation is relevant. As we explained in Jackman , identification testimony is helpful t o the jury "when the witness possesses sufficiently relevant familiarity with the de f endant that the jury cannot also possess, and when the photographs [of the defendant] are not either

so unmistakably clear or so hopelessly obscure that the witness is

no better suited than the jury to make the identification." 48 F.3d at 4-5. Perkins' contact with Kornegay on six occasions within a few months is within the zone that courts have found acceptable to show that the witness was sufficiently familiar with the defendant to provide a useful identification. See, e.g. , Beck , 393 F.3d 1088, 1091 (9th Cir. 2005) (affirming identification testimony of a parole officer who met with the def endant four times over two months),-10-

vacatedon other grounds , --U.S.--, 125 S.Ct. 2000 (2005); United States v. Pierce , 136 F.3d 770, 775 (11th Cir . 1998) (affirming identification testimony of an officer who m et the defendant ten ti mes ove r seven months); United States v. Wright , 904 F.2d 403, 404-05 (8th Cir. 1990) (affirming identification testimon y of a po lice officer who had seen the defendant eight times ov er tw o years); United States v. Allen , 787 F.2d 933, 935 (4th Cir. 1986) (affirming identification testimony of a parole officer who briefly met the defendant on s ix or s even occasions), vacated on other grounds , 479 U.S. 1077 (1987). Moreover, Perkins' encounters with Kornegay were for the sole purpose of distingu ishing him from his twin brother. Thus, Perkins was no doubt ac utely aw are of the subtle feat ures of Kornegay's appearance during their several encounters, and, at two of the encounters, he was able to directly compare Kornegay to his twin brother. In light of the circumstances surrounding Perkins' encounters with Kornegay, we have little doubt that Perkins developed a sufficient fa m iliarity with Kornegay to provide a competent identification.

We also conclude that P erkin s' testimony was helpful to the jury in making the ultimate identification of the suspect. The visual evidence before the jury was not particularly clear. T h e videotape of the drug deal was blurry and showed the seller's face for only a few seconds. Thus, it would have been difficult for the jury to attempt to match the photograph of Kornegay with the person-11-

in the videotape. See Jackman , 48 F.3d at 5 (pe rmittin g identification testimony because the pictures of the robbery suspect were blurred).

The difficulty in making the identification was compounded h ere bec ause the jury was asked to draw a distinction between identical t win brothers. Perkins was the only government witness who could tes tify that he had seen the brothers together near in time to the drug deal. Gi ven that Kornegay defended by claiming that Andre had sold the drugs to Chaney, a witness w ho coul d distinguish the brothers based on personal observations made in the

summer of 2001 was, at the very least, helpful. See Fed. R. Evid. 701(b). The district court's ruli n g that Perkins' testimony satisfiedthe requir ements of Rule 701 was not an abuse of discretion.

Kornegay also argues that Perkins' testimony should have been excluded under Fed. R. Evid. 403 as overly pr ejud icial. Essentially, Kornegay co nt ends that Perkins' familiarity with him derivedfrom a criminal investigation, and therefore the jury likely drew a prejudicial inference fro m the f act that he was under investigation.

Evidence should be excluded under Rule 403 only where its probative value "is substantially outweig hed by its prejudicial effect, that is, by its tendency to encourage the jury to decide the

case on improper grounds." See United States v. Adams , 37 5 F.3 d-12-

108, 111 (1st Cir. 2 004). Trial judges enjoy wide latitude in making Rule 403 rulings and are only overturned after a showing of an egregious error. See id.

Kornegay argue s t hat Perkins' testimony was of little probative value because t he photographs of the Kornegay brothers

were suffi cient f or the jury to make the identification and there

were other, less prejudicial forms of evidence that the government couldhave introdu c ed to bolster its case ( e.g. , fingerprint evidence). Whether the government has alt ernat ive means of effect ively proving its case without introducing the prejudicial evidence is pertinent to the Rule 403 analysis. See UnitedStates

v. Varoudakis , 233 F.3d 113, 122 (1 s t Cir. 2000). But, as discussed, be cause Kornegay accused his identical twin brother of the crime, and because the videotape was of poor quality, the photographic evi d ence was not sufficiently clear to make the identity testimony unnecessary. More over, there is no record support for Kornegay's contention that the gove rnment had other identification evidence at its disposal that i t could have introduced in lieu of Perkins' testimony.

There w as also no prejudice because Perkins did not go beyondidentification and did not describe Kornegay's criminal background. Appellate courts have found no substantia l pre judice where the trial court has restricted the witness' testimony to limit

re f erences to the defendant's criminal background. See, e.g. ,4 Kornegay also co nten ds that he was prejudiced because he

could not vigorously cross-examine Perkins because he feared that Perkins would offer prejudici al tes timony. But Kornegay has not identifiedspecific questions that he wou ld have asked, and our review of the record indicates that Kornegay did aggressively cross-examine Perkins. -13- United States v. Stormer , 938 F.2d 759, 763-764 (7th Cir. 1991); Allen , 787 F.2d at 937 -38; Un ited States v. Farnsworth , 729 F.2d 1158, 1161 (8th Cir. 1984).

Here, the district court took the necessary precautions. Through the use of leading questions, Perkins testified that he was

a police officer but did not specify his duties or responsibilities. He told the jury that he enco u ntered the Kornegays as part of the Boston Police Depa r tment's community policing program, which encourages officers to become familiar with the individuals who live in their assigned nei ghbo rhood beats. He also told the jury that the encounters in the summer of 2001 wer e not arrests and did not involve allegations of criminal activity. These precaution s wer e sufficient to limit the poten tial p rejudice from Perkins' testimony. 4

C. Closing Argument Kornegay challenges certain portions of the government's closing argument as improper vouching f or the credibility of Detective Perkins. Kornegay cites two statements (which are set out below) in which the government asked the jury to believe Detective Perki ns' identification testimony because he was an experienced5 The first statement was: The defe nse want you to believe that Detective Earl Perki ns made this up. . . Commit perjury , a detective with 15 years on the Boston Pol ice Dep artment . . . I submit to you that you can tell from examining and watching Earl Perkins that he has better things to do. The second statement was: What's [Kornegay's ] c laim at base? He's saying, well Earl Perkins came in here and committedperjury and put hi s job at risk andrisked p r ison and risked all of these things because -- why? -14- police officer who could lose his job or go t o jail if he lied on the witness stand. 5

We have recognized that statements such as these, which arguably ask the jury to believe the testimony of a police officer because of the esteem in which the public holds law enforcement and the risk that a police officer would take by l y ing in court, are "inappropriate." United States v. Torres-Galindo , 206 F.3d136, 142 (1st Cir. 2000). On appea l, the government essentially concedes that the challenged statements run afoul of this admoni tion. It nevertheless contends that the error was harmless.

In Torres-Galindo , we ruled that similar statements were harmless because the statements were not a severe infractio n , the

cour t instructed the jury that the statements and arguments of counsel are not evidence, and the evidence against the defendant was-15-

substantial. See id. at 142-43. Each of these factors is present here. Most importa ntl y, the district court judge provided a curative instruction that was far more explicit than the one which

we found sufficient in Torres-Galindo . In response to Kornegay's objection, the district court told the jury:

In discussing the testimony of Detective Perkins, [the prosecutor] referred to evidence concerning Mr. Perkins's tenure on the police fo rce in Boston, and he observed that his testimony, if not truthful . . . wouldput the off icer a t risk of loss of his job, the risk of committing perjury and going to prison . .

. . Now, in his favor, [t he prosecutor] pointe d out . . . that Detective Perkins' testimony as a police officer stood in the same light as any witness . . . in as far as his credibility is concerned, and I want to emphasize that. The argument that [the prosecutor] made about risking loss of job and risking perjury might be understood by you to be an appeal to so me notion that the officer is entitled to more credibility because he's a police officer. . .

. If you are inclinedto believe that, that is wrong; you're to judge a ll t he witnesses the same. [Detective] Perkins gets no special credit because he's a police officer. . . . In so far as there's a risk of going to prison fo r perjury, everyone who testifies in this courtroomfaces the same risk. I want to point this out to you, just in case there is any [misunderstanding] that [Detective] Perkins is somehow elevated in his credibility because he is a police officer. Given the strong ca se pres ented by the government, the limited nature of the infraction, the court's d et ailed curative6 Kornegay also challenges the prosecutors suggestion that, in

evalua ting t he likelihood that Perkins lied, the jury should use common sense and place themselves in the witness' shoes to evaluate h is testi mony. We discern no error. Kornegay has cited no authority for the proposition that a prosecutor cannot ask a jury to use common sense in evaluating a witness' possible bias. Inherent in such a common sense evaluation is that each juror will place him or herself in the witness' position to judge the witness' motivations basedon the juror's notion of typical human behavior.

-16- instruction, and our p resumption that juries follow the court's instructions, see United States v. De Jesus Mateo , 373 F.3d70, 73 (1s t Cir. 2004), we are convinced that the government's inappropriate statements concern ing Perkins' testimony were not prejudicial in these circumstances. 6

D. Downward Departures Kornegay claims that the dis tric t court erroneously deniedhim a downward departure on either of tw o ba ses. Both depar ture arguments relate to the 14-month state drug convicti o n sentence which Kornegay served after the drug deal at issu e in this case but before he was indicted.

The f irst ground for departure was premised on t h e government's delay in pr osecuting Kornegay in order to protect Chaney from being detected as an informant. Kornegay argued that this delay foreclose d the possibility of his federal sentence running concurrently with his state sentence andthat a departure shouldbe granted so that he would not be prejudiced. See United States v. Saldana , 109 F.3d100, 104 (1st Cir. 1997) (holding that-17-

prosecutorial delay that was "extreme" or "sinister" could support

a departure if the defendant was required to s erve a state sentence which could have been c oncurrent with the federal

se ntence had the federal prosecution proceeded sooner). The district court declined to grant the departure but did not provide a clear reason for its decision.

This court has juris d iction to review the denial of a request for a downward departure if the court deniedthe departure

as precluded by law. See United States v. Romolo , 937 F.2d 20, 22 (1st Cir. 1991). If, however, the defendant's claim is only that the distr ict court unreasonably declined to exercise its discretion to grant a departure, we may not review it . See id. On the record before us, it is not clear whether the court declinedthe Saldana departure a s a matter of law or discretion. In such circumstances, absent information in the record suggesting otherwise, we assume that the court understood tha t it could depart but decided not to do so as a matte r of discretion. See UnitedStates v. Lujan , 324 F.3d 27, 32 (1st Cir. 2003); see also UnitedStates v. Scott , 387 F.3d 139, 143 (2d Cir. 2004); United States v. Williams , 355 F.3d 893, 901 (6th Cir. 2003); U nited States v. Here dia-Cruz , 328 F.3d 1283, 1289-90 (10th Cir. 2003); United States v. Chase , 174 F.3d 1193, 1195 (11th Cir. 1999).

Kornegay ass e rts that the district court believed that it did not have the authority to grant the departure based on its7 Section 5G1.3(c) provides that a defendant's sentence may run

concurrently with an undischarged term of imprisonment for conduct that is related to the instant offense. Kornegay contends that this provision should be read broadly to authorize a downw ard departure where the defendant has completed a term of imprisonment for conduct related to the instant offense. -18- statement that "if I look at all the relevant material, I cannot findthat this departure is authorized." But this statement was clearly r elated to Kornegay's other departure request (which we discuss infra ) andnot the Saldana request. As there is no basis

on which to conclude that the distri ct court believed it was legally precluded f r om granting a Saldana departure, we may not review its decision to deny the departure. See Scott , 387 F.3d at 143. Kornegay's second grou n d for departure was premised on his belief that the district court should have reduced his sentence to account for the time that he served for the state drug conviction because it was conduct related to the present offense. Kornegay p remises his argument on § 5G1.3(c) in the 2000 version of the Sentencing Guidelines. 7 The government responds that the 2003 Guidelines apply to this case and, under the relevant section of those Guidelines, § 5K2.23, Kornegay was legally precludedfrom the dep ar ture because the state sentence did not result in an increasedoffense level for the federa l co nviction. For this request, t he district court ruled that it could not grant the-19-

departure as a matte r of law. Our review is therefore de novo . UnitedStates v. Grandmaison , 77 F.3d 555, 560-61 (1st Cir. 1996).

To evaluate Korne gay's claim, we must first determine which version of the Guidelines apply. The general rule is that the version of the Guidelines in force at the time of sentencing applies -- here, the 2003 Guidelines. See U.S.S.G. § 1B1.11. If, however, applying the most recent Guidelines version creates an ex post facto problem, the co ur t applies the Guidelines in force at the time of the offense -- here, the 2000 Guidelines. See id. § 1B1.11(b)(2). Kornegay has not made an ex post facto argument to just if y his assertion that the 2000 Guidelines apply. He has therefore forfeited any claim for applying the earlier Guidelines version. See In re Gosselin , 276 F.3d70, 72 (1st Cir. 2002); see also Prewitt v. UnitedStates , 83 F.3d 812, 820-21 (7th Cir. 1996) (stating that defendant forfeited ex post facto claim for applying earlier version of the Guidelines by not raising the argument before the district court).

Under the 2003 Guideli ne s, § 5K2.23 provides that a downwarddeparture may be ap propri ate if the defendant has completeda term of imprisonment and the completed sen t ence was for a crime that was relevant conduct for the instant offense and

was the basis for an increase in the offense level for the instant offense . Kornegay meets the first two conditions for eligibility for this departure, but the offense level was not increased as a-20-

result of considering the earlier conviction. The district court therefo r e correctly denied the § 5K2.23 departure request. See UnitedS tates v. Ramanauskas , No. 04-04PAM, 2005 WL 189708 at *1 (D. Minn. Jan. 21, 2005) ( denying § 5K2.23 departure on this basis). E. Booker Issue

Finally, we address Kornegay's claimthat he is entitled to resentencing because the district court erroneously considered the Guidelines as mandatory in assigning his sentence. See United States v. Booker , 525 U.S --, 1 25 S. Ct. 738 (2005) (declaring the Guidelines advisory to preserve their con stitutionality). Kornegay conceded at oral ar gument that he did not preserve this argument for appeal, and therefore we review i t under the plain

error test. See United States v. Antonakopoulos , 399 F.3d 68, 76- 77 (1st Cir. 2005). This test is met only where the defendant can de monstr ate a plain error that affects substantial rights, and seriously affects the fairness, integrity or public reputation of judicial proceedings. See id. at 77.

Kornegay has met the "plain erro r" p ortion of the test by showing that the district court treated the Guidelines as mandatory. See id. To meet the "affects subs ta ntial rights" prong of the test, Kornegay must show "a reasonable pr obab ility" that the dis trict c ourt would impose a more favorable sentence under the now advisory Guidelines. Id. at 75. We are not "overly-21-

demanding as to proof of [ su ch] probability where, either in the existing record or by plausibl e proff er, there is a reasonable indica tion that the district court judge might well have reached

a different result under adv isor y guidelines." United States v. Heldeman , 402 F.3d 220, 224 (1st Cir. 2005).

Even applying this relaxed standa rd, K ornegay has not establisheda reasonable probability that the district court might have given him a lesser se nt ence under advisory Guidelines. Nothing about the district court's comments at s entencing indicates that it thought that Kornegay's sentence was too harsh. That the court sentenced Kornegay at the low end of the applicable Guideline range is not, by itself, sufficient to show a reasonable probability of a lesser sentence u nd er the advisory system. See UnitedStates v. Figuereo , 404 F.3d 537, 541-42 (1st Cir . 2005); United States v. Cacho-Bonilla , 404 F.3d 84, 95 (1st Cir. 2005).

Kornegay has suggested that he s ho uld be resentenced because, after Booker , there is a broader range of factors that a court may consider in fashioning a reasonable sentence. Although that is true, Kornegay has not proffered to this c ourt any

" spec ific facts" concerning his case that he would present on remand. See Antonakopoulos , 399 F.3d at 80. Without identifying such facts, Kornegay has not met his burden of demonstrating that the applicatio n of the mandatory Guidelines affected his substantial rights.-22- III. For the reasons stated, we affirm Andrew Kornegay's conviction and sentence.