*Of the Tenth Circuit, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 03-1680

UNITED STATES OF AMERICA,

Appellee,

v.

ALONSO TAVAREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Baldock, Senior Circuit Judge,

*

Lipez, Circuit Judge.

Patrick M. Hamilton, Assistant United States Attorney, with

whom Michael J. Sullivan, United States Attorney, was on brief,

for appellee.

Karen A. Pickett, with whom Donnelly, Conroy & Gelhaar, LLP

was on brief, for appellant.

May 23, 2005
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LYNCH, Circuit Judge. On appeal from his guilty plea and

sentence, Alonso Tavarez raises two arguments: (1) that his guilty

plea violated Rule 11 of the Federal Rules of Criminal Procedure as

it was not knowing and intelligent and (2) that his sentence should

be vacated and remanded for resentencing in light of United States

v. Booker, 125 S. Ct. 738 (2005), when he did not preserve a claim

of error below. We reject both arguments and affirm Tavarez'

conviction and sentence.

On September 20, 2000, a grand jury returned an

indictment against Tavarez. Count One charged him with conspiracy

to possess with intent to distribute and to distribute at least

five kilograms of cocaine, in violation of 21 U.S.C. § 846. Count

Nineteen charged him with possession with intent to distribute and

distribution of at least five kilograms of cocaine in violation of

21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(A)(ii)(II). Tavarez pled

guilty to both of these counts on October 30, 2002. On March 17,

2003, the district court sentenced the defendant to 70 months'

imprisonment followed by three years of supervised release.

Although the crime to which the defendant pled guilty carries a

mandatory minimum sentence of ten years, see 21 U.S.C. §

841(b)(1)(A), the defendant's sentence was significantly reduced

due to the application of the safety valve, 28 U.S.C. § 3553(f),

and the defendant's acceptance of responsibility.
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We reject Tavarez' first argument that his guilty plea

was taken in violation of Fed. R. Crim. P. 11 because it was not

"knowing and intelligent" as it was based on an understanding of a

sentencing scheme rendered erroneous by United States v. Booker,

125 S. Ct. 738 (2005). The defendant conceded at oral argument

that this court's opinion in United States v. Sahlin, 399 F.3d 27

(1st Cir. 2005), resolves this issue against the defendant. See

Sahlin, 399 F.3d at 31.

We also reject Tavarez' second argument that his case

should be remanded for resentencing because the district court

sentenced him under the mandatory Guidelines regime. As the

defendant did not preserve this error below, his claim is reviewed

for plain error. See United States v. Antonakopoulos, 399 F.3d 68

(1st Cir. 2005). Tavarez must show a "reasonable probability" that

the district court would have imposed a lower sentence if the

Guidelines were advisory. Id. at 75; see United States v.

Heldeman, 402 F.3d 220, 224 (1st Cir. 2005). While we are not

"overly demanding as to proof of probability," in this case, the

defendant has offered us no "reasonable indication that the

district judge might well have reached a different result under

advisory guidelines." Heldeman, 402 F.3d at 224. The factors to

which Tavarez points -- for example, his status as a deportable

felon, his psychiatric history, and his recognition of the

consequences of his crime on family members -- do not convince us
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that the district court would have imposed a sentence below the

sentence he has already received. 

Accordingly, his conviction and sentence are affirmed.