FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 June 14, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-13075

Non-Argument Calendar

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D. C. Docket No. 04-20074-CR-DLG

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ORLANDO MURCIA-PERLAZA, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 14, 2005)

Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.

PER CURIAM:

Orlando Murcia-Perlaza appeals his 87-month sentence for importation of
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heroin, in violation of 21 U.S.C. § 952(a). On appeal, he argues: (1) that his

sentence is unconstitutional pursuant to Blakely v. Washington, 542 U.S. __, 124

S. Ct. 2531, 159 L. Ed.2d 403 (2004), and United States v. Booker, __ U.S. __, 125 

S. Ct. 738, 160 L. Ed. 2d 621 (2005); and (2) that, because his role in the offense

was only to serve as a drug courier, and there were other, more culpable

participants in the drug importation scheme, the district court should have adjusted

his base offense level downward two levels, pursuant to U.S.S.G. § 3B1.2. We

address each argument in turn.

1. Booker Error

Because Murcia-Perlaza raises his Blakely/Booker claim for the first time on

appeal, we review it for plain error. United States v. Rodriguez, 398 F.3d 1291,

1297-98 (11th Cir. 2005). An appellate court may not correct an error raised for

the first time on appeal unless there is: “(1) error, (2) that is plain, and (3) that

affects substantial rights.” United States v. Cotton, 535 U.S. 625, 631 (2002)

(quotations and internal marks omitted); Rodriguez, 398 F.3d at 1298. If these

three conditions are met, we have discretion to correct the error, so long as “(4) the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Cotton, 535 U.S. at 631 (quotations and internal marks omitted);

Rodriguez, 398 F.3d at 1298.
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a. Constitutional Error

In this case there was no constitutional Booker error. Pursuant to Booker,

“[a]ny fact (other than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or a

jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Booker, 125 S. Ct. at 756. Murcia-Perlaza admitted to

importing 4,715 grams of a mixture and substance containing a detectable amount

of heroin at his change of plea hearing — the fact supporting his sentence that he

alleges gives rise to the Booker violation — when he agreed that the government’s

statement of the factual basis for its charges “accurately describes what [he] did in

this case[.]” Because Murcia-Perlaza admitted this fact, the district court did not

commit constitutional Booker error.

b. Non-Constitutional (Statutory) Error

However, the district court did err by sentencing Murcia-Perlaza under a

mandatory, rather than advisory, sentencing guidelines scheme, even in the

absence of a constitutional violation. United States v. Shelton, 400 F.3d 1325,

1330-31 (11th Cir. 2005). Moreover, such error is plain, even though the district

court sentenced Murcia-Perlaza before Booker was decided. Id. at 1331.

Under Rodriguez, to satisfy the third-prong of the plain-error test, a
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defendant bears the burden of proving a “reasonable probability of a different

result if the guidelines had been applied in an advisory instead of binding fashion

by the sentencing judge in this case.” 398 F.3d at 1301. A “reasonable

probability” of a different result is a probability “sufficient to undermine

confidence in the outcome” of the proceeding. Id. at 1299 (quoting United States

v. Dominguez Benitez, 542 U.S. 74, __, 124 S. Ct. 2333, 2340, 159 L. Ed. 2d 157

(2004)). The only evidence that the district court would have imposed a lower

sentence under an advisory guidelines scheme is that it imposed the lowest

sentence possible within the applicable guidelines range, which is insufficient to

establish the requisite “reasonable probability of a different result” under

Rodriguez. United States v. Fields, __ F.3d __, No. 04-12486, 2005 U.S. App.

LEXIS 8637, *9-12 (11th Cir. May 16, 2005). Therefore, Murcia-Perlaza cannot

demonstrate that the district court committed plain error when it sentenced him

under a mandatory guidelines scheme.

2. Minor-Role Downward Adjustment under U.S.S.G. § 3B1.2

Murcia-Perlaza next argues that the district court should have adjusted his

base offense level downward two levels, pursuant to U.S.S.G. § 3B1.2. He asserts

that, because he had no role in planning the criminal scheme or distributing the

drugs, he was less culpable than others, who acted as “partners,” while he merely
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served as a “cog in the machine.” He argues that the district court ignored the fact

that he was a courier, while others were involved in recruiting, instructing,

supervising, and guiding couriers. He contends that, instead of focusing on the

totality of the circumstances, the district court overemphasized the amount of drugs

imported. 

The district court’s determination of a defendant’s role in the offense is a

finding of fact that we review for clear error. United States v. De Varon, 175 F.3d

930, 937 (11th Cir. 1999) (en banc). A minor-role downward adjustment under

§ 3B1.2 is appropriate only in circumstances where the defendant plays a part in

committing the offense that makes him substantially less culpable than the average

participant. U.S.S.G. § 3B1.2, cmt. n.3(A). It is the defendant’s burden to show

by a preponderance of the evidence that he played only a minor role in the offense. 

De Varon, 175 F.3d at 934. In determining a defendant’s role in the offense, the

district court first must measure the defendant’s role against the relevant conduct

for which she was held accountable at sentencing. Id. Second, “the district court

may also measure the defendant’s conduct against that of other participants in the

criminal scheme attributed to the defendant.” Id.

The district court’s finding that Murcia-Perlaza had a key duty in the crime,

and that his participation was more than minor, is supported by the record, and the
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district court did not clearly err by declining to apply a minor-role downward

adjustment. 

Based on the foregoing, we affirm Murcia-Perlaza’s sentence.

AFFIRMED.