FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 17, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 03-12810

Non-Argument Calendar

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D. C. Docket No. 00-00262-CR-3-J-20HTS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

WILLIAM ALLEN ARNOLD, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

 (August 17, 2005)

ON REMAND FROM THE 

SUPREME COURT OF THE UNITED STATES

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
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The appeal of William Allen Arnold, pro se, is again before us, following a

remand from the Supreme Court of the United States for further consideration in

light of United States v. Booker, 125 S. Ct. 783 (2005). See Arnold v. United

States, 125 S. Ct. 2527 (2005). We previously affirmed Arnold’s conviction and

twelve-month sentence for conspiring to defraud the United States, in violation of

18 U.S.C. § 371. United States v. Arnold, 125 Fed. Appx. 269 (11th Cir. 2004). 

After review, we conclude that because Arnold raised a Booker-type claim in his

initial brief on appeal, but raised no such claim before the district court, we can

review his sentence only for plain error. However, because Arnold has not

demonstrated a reasonable probability of a different result under the post-Booker

advisory guidelines system, we again affirm Arnold’s sentence and reinstate in part

our prior opinion. 

BACKGROUND

After the jury returned a guilty verdict, the Pre-Sentence Investigation

Report (“PSI”) calculated $217, 586.00 as the total tax loss attributable to Arnold’s

role in the conspiracy. Using this loss amount, the PSI recommended a base

offense level of sixteen, pursuant to U.S.S.G. § 2T1.1(a)(1). The PSI also

recommended a two-level enhancement for obstruction of justice, pursuant to
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U.S.S.G. § 3C1.1, due to Arnold’s continued refusal to comply with grand jury

proceedings – conduct that ultimately resulted in a criminal contempt conviction. 

With an adjusted offense level of 18 and a criminal history category of I, the PSI

calculated his guidelines’ imprisonment range at 27 to 33 months. 

Arnold filed a pro se affidavit stating his objections to the PSI. His

extensive objections largely concerned allegations that the district court lacked

jurisdiction, as well as his related quasi-constitutional claims regarding the Internal

Revenue Service and Social Security Administration. While Arnold did repeatedly

object to the tax loss amounts calculated, he did not do so based on the judge’s

determination of the tax loss or jury’s failure to find the tax amount. Arnold’s

affidavit also failed to reference the Sixth Amendment or any cases in the line of

Apprendi v. New Jersey, 530 U.S. 266 (2000). 

At the sentencing hearing, Arnold refused to address the district court

regarding his objections, repeatedly stating that he would remain silent and stand

on the objections contained in his previously-submitted affidavit. He explicitly

declined to be heard on the issue of tax loss calculations. 

The district court ultimately overruled any objections and adopted the PSI’s

factual findings and guideline calculations. However, the district court then

departed downward pursuant to U.S.S.G. §5G1.3, because Arnold had already
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served 18 months for criminal contempt based on his failure to cooperate with the

grand jury proceedings. The district court ultimately sentenced Arnold to twelve

months’ imprisonment and two years’ of supervised release. 

On appeal, Arnold, again proceeding pro se, raised a variety of claims

concerning his conviction and sentence. In relevant part, Arnold again objected to

the district court’s tax loss calculation on several grounds, including a claim that

his “sentence is not lawful” because it was “based upon [tax loss] ‘numerics’ . . .

conjured after trial, for a charge never even alleged, much less tried.” Appellant

Br. at 50 (emphasis in original). Arnold argued that imposing such a sentence

where the tax loss amount was neither charged nor tried, would “ rocket-sled

through the due process barrier at light speed.” Id.

We affirmed Arnold’s conviction and sentence, finding the tax loss amount

used by the district court in sentencing was a reasonable estimate of the tax loss

during the time of Arnold’s involvement in the conspiracy. Arnold, 125 Fed.

Appx. 269. Arnold then filed a petition for a writ of certiorari with the Supreme

Court. The Supreme Court granted that petition, vacating our opinion and

remanding the case for further consideration in light of Booker. Arnold, 125 S. Ct.

2527.
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STANDARD OF REVIEW

While Arnold asserts that he raised the Booker issue both at trial and on

direct appeal, the record does not support this assertion. Arnold’s sentencing

“affidavit” did not object to the district court’s estimation of the tax loss under the

preponderance standard, raise his jury trial rights under the Sixth Amendment, nor

cite to any case in the Apprendi line. See United States v. Dowling, 403 F.3d

1242, 1246 (11th Cir. 2005) (holding that appellant’s non-constitutional sentencing

objection failed to preserve Booker error, where the objection made no reference to

the Sixth Amendment, the role of judge as fact-finder, the right to jury

determination of disputed facts, or the Apprendi line of cases).

However, when reviewed under the liberal standards applicable to pro se

arguments, see Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir. 2000),

Arnold’s initial brief on appeal does appear to raise a Booker-type claim. 

Specifically, Arnold argued that his sentence violated constitutional due process

guarantees because the tax loss amount was never tried before the jury, but instead

was calculated after trial. Appellant Brief at 50. Given our obligation to liberally

construe pro se filings, we hold that Arnold’s appellate-brief arguments are

sufficient to raise the Booker issue. Nonetheless, because Arnold did not raise any

such issue below, we review his Booker claim only for plain error. United States
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v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005), cert. denied, 125 S. Ct. 2935

(2005).

DISCUSSION

Under plain error review, appellate courts have a limited power to correct

errors that were not timely raised in the district court. United States v. Olano, 507

U.S. 725, 731 (1993). We may not correct such an error unless: (i) there is error;

(ii) it is plain; and (iii) it affects substantial rights. Id. If these three conditions are

met, we may exercise our discretion to correct the error if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id.

In this case, the district court committed both constitutional and statutory

Booker errors when it sentenced Arnold under a mandatory guidelines system

based upon facts (the tax loss amount and Arnold’s obstruction of justice) that

were neither admitted by Arnold nor proven to a jury beyond a reasonable doubt. 

Booker, 125 S. Ct. at 756. Though this error was not apparent at the time of

sentencing, under Booker it is now plain. Rodriguez, 398 F.3d at 1299.

However, it does not appear that under the third prong of the plain-error test,

Arnold’s substantial rights have been affected. The third prong of plain error

review requires Arnold to demonstrate that absent the error, there is a reasonable

probability of a different result. Id. Where the effect of the error is indeterminate
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or if we would be left to speculate, that burden has not been satisfied. Id. at 1301. 

A close review of the record reveals no suggestion that the district court would

have imposed a lower sentence under the post-Booker advisory sentencing system. 

As such, Arnold has failed to demonstrate that the Booker error affected his

substantial rights. See United States v. Cartwright, 413 F.3d 1295, 1301 (11th Cir.

2005).

Accordingly, we reinstate our prior opinion with the exception of our

discussion of the district court’s tax calculation, for which we substitute the

foregoing.

OPINION REINSTATED IN PART; AFFIRMED.