FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 29, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-16704

Non-Argument Calendar

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D. C. Docket No. 04-00261-CR-T-27MSS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ADOLFO ANTONIO ARTEAGA-GOMEZ, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

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(March 29, 2006)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Adolfo Antonio Arteaga-Gomez appeals his 108-month sentence
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for conspiracy and possession with intent to distribute five or more kilograms of

cocaine onboard a vessel subject to United States jurisdiction, in violation of 46

App. U.S.C. § 1903(a), (g), and (j), and 21 U.S.C. § 960(b)(1)(B)(ii). On appeal,

Arteaga-Gomez argues that the district court erred, under United States v. Booker,

543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), when it applied the

Sentencing Guidelines as mandatory. Arteaga-Gomez further argues that, because

the district court’s error affected his sentence, the error was not harmless. 

Arteaga-Gomez explains that the district court was precluded from considering

other relevant factors that tended to show that the final sentence was “far more than

necessary to accomplish the statutory purposes of sentencing,” specifically that he:

(1) is 33 years old and has never before been convicted of a crime; (2) grew up in a

very poor home in Colombia; (3) “is married and, prior to his arrest, supported two

children, ages 9 and 12,” who now must be supported by his wife; and (4) did not

complete high school and has no assets. Arteaga-Gomez argues that, as a result of

his disadvantaged background, he is less culpable.

Because Arteaga-Gomez did not raise a Booker claim in the district court, 

we review his claim for plain error only. See United States v. Dowling, 403 F.3d

1242, 1246-47 (11th Cir.), cert. denied, 126 S. Ct. 462 (2005). Under a plain error

analysis, a defendant must show: (1) an error, (2) that is plain, and (3) affects
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substantial rights. Id. at 1247. If the defendant is able to make a showing of all

three, we may then exercise our discretion to notice the error if the error “seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id. We

have held that, in the context of Booker errors, the plain error test is satisfied only

when the defendant can show that “there is a reasonable probability of a different

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

fashion.” United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.), cert.

denied, 125 S. Ct. 2935 (2005). 

In Booker, the Supreme Court held that the mandatory nature of the

Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial. Booker, 543 U.S. at 231-35, 125 S. Ct. at

749-51. The Court concluded that the guidelines remain in force as written, and,

although mandatory application no longer governs, district court judges still “must

consult those Guidelines and take them into account when sentencing.” Id. at 264,

125 S. Ct. at 767. We have held that a statutory Booker error has been committed

“when the district court sentences a defendant under a mandatory guidelines

scheme, even in the absence of a Sixth Amendment enhancement violation.” 

United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (quotation

omitted).
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We have held that “the fact that the district court sentence[s] [a] defendant to

the bottom of the applicable guidelines range establishes only that the court felt

that sentence was appropriate under the mandatory guidelines system. It does not

establish a reasonable probability that the court would have imposed a lesser

sentence under an advisory regime.” United States v. Fields, 408 F.3d 1356, 1361

(11th Cir.), cert. denied, 126 S. Ct. 221 (2005). We have further held that “where

the effect of an 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.” Rodriguez, 398 F.3d at 1301.

Because Arteaga-Gomez did not show that the district court would have

sentenced him differently had it applied the Sentencing Guidelines as advisory, we

conclude that he failed to satisfy the third-prong of plain error review, and,

therefore, we affirm his sentence.

AFFIRMED.