FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 12, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-15136 

Non-Argument Calendar

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D.C. Docket No. 03-20712-CR-UUB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HUNTER DEMARICK,

Defendant-Appellant.

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Appeal from the United States District Court for the

Southern District of Florida

_________________________

 (July 12, 2005)

Before ANDERSON, CARNES and WILSON, Circuit Judges.

PER CURIAM:

Hunter Demarick appeals his 188-month sentence imposed after a jury

convicted him for possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1) and 924(e). On appeal, Demarick argues that, in light of the
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remedial holding of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005),

the district court erred by applying the Sentencing Guidelines as mandatory. 

Moreover, Demarick argues, the fact that the court sentenced him to the lowest

possible sentence within the guideline range demonstrates that the Booker error

was not harmless. According to Demarick, because the court erroneously believed

that it was required to impose a sentence within the guideline range, rather than an

alternative reasonable sentence, he is entitled to a remand for resentencing. 

We note at the outset that because Demarick failed to raise his Booker

argument before the district court, we review the district court’s decision for plain

error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005),

petition for cert. filed, 73 U.S.L.W. 3531 (U.S. Feb. 23, 2005) (No. 04-1148). 

Thus, we may exercise our discretion to correct a forfeited error only where the

appellant establishes: “(1) error, (2) that is plain, and (3) that affects substantial

rights . . . , but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (citations and internal quotations

omitted).

In order to prove that a particular error affected his substantial rights, the

appellant must demonstrate a reasonable probability that the result would have

been different but for the alleged error. Id. at 1299. “[W]here the effect of an
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error on the result in the district court is uncertain or indeterminate . . . [the

appellant] has not met his burden of showing that his substantial rights have been

affected.” Id. at 1301 (citing Jones v. United States, 527 U.S. 373, 394-95, 119 S.

Ct. 2090, 2105 (1999)). The fact that a district court imposed a sentence at the

low end of the guideline range does not, by itself, establish a reasonable

probability that it would have imposed a lesser sentence under an advisory

guideline scheme. United States v. Fields, No. 04-12486, manuscript op. at 8-10

(11th Cir. May 16, 2005).

We have explained that there are two possible types of Booker error: (1) the

error of sentencing a defendant on the basis of facts not found by the jury nor

admitted by the defendant, or “constitutional error”; and (2) the error of being

sentenced under a mandatory guidelines scheme, or “statutory error.” See United

States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

A. Sixth Amendment Error

In Booker, the Supreme Court reaffirmed its holding from Apprendi that,

“[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, 543 U.S. at ___, 125 S. Ct. at 756 (citing Apprendi v.
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New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)). Thus, when a defendant is

sentenced on the basis of facts admitted by him, that sentence does not offend the

Sixth Amendment’s right to trial by jury.

In Shelton, we held that the defendant’s Sixth Amendment rights were not

violated because he had admitted the facts used to enhance his sentence by failing

to object to the statements contained in the presentence investigation report

(“PSI”). Shelton, 400 F.3d at 1330. Likewise, Demarick failed to object to the

facts contained in the PSI. Therefore, he admitted the facts that support his

sentence. As noted above, sentencing on the basis of admitted facts does not

violate the Sixth Amendment, and therefore there is no Sixth Amendment error.

B. Statutory Error

Nonetheless, Demarick can establish statutory Booker error because the

district court sentenced him under a mandatory guidelines scheme. Id. The

decision in Booker made this error plain, thus satisfying the first two prongs of the

plain error test. Id.

Despite this plain error, Demarick cannot prevail because he cannot

demonstrate that his substantial rights were affected by the error. Demarick claims

that the fact that he was sentenced on the low end of the sentencing range

establishes a reasonable probability that his sentence would have been different
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under an advisory guidelines scheme. As we held in Fields, this showing, without

more, does not meet the defendant’s burden under the third prong of the plain

error test. Therefore, there is no statutory Booker error.

For the foregoing reasons, and upon considered review of the record and the

parties’ briefs, we affirm Demarick’s sentence.

AFFIRMED.