FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 May 19, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________________

No. 04-11067

Non-Argument Calendar

___________________________

D. C. Docket No. 03-00385-CR-T-30

UNITED STATES OF AMERICA,

 

 Plaintiff-Appellee, 

versus

MARIO LOPEZ-CONTRERAS,

a.k.a. Ramon,

 Defendant-Appellant. 

_________________________________________

Appeal from the United States District Court

for the Middle District of Florida 

_________________________________________

(May 19, 2005)

Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.
 In Blakely, the Supreme Court struck down an upward departure imposed under the State of 1

Washington’s sentencing system that was based solely on judicial factfinding, clarifying that the

relevant “statutory maximum for Apprendi purposes is the maximum a judge may impose solely on

the basis of the facts reflected in the jury verdict or admitted by the defendant.” 124 S.Ct. at 2534-38

(emphasis omitted). But the Court stated that it was expressing “no opinion” about the Federal

Sentencing Guidelines. Id. at 2538 n.9. 

 Then in Booker v. United States, 125 S.Ct. 738 (2005), the Supreme Court concluded that

Blakely applied to the Federal Sentencing Guidelines. 125 S.Ct. at 755. The Court determined that

the Sixth Amendment is violated when a district court, acting pursuant to the Sentencing Reform Act

and the mandatory federal guidelines, imposes a sentence greater than the maximum authorized by

the facts found by a jury alone or established by a guilty plea. See Booker, 125 S.Ct. at 749-50,

755-56. We thus consider Lopez-Contreras’s claim in the light of Booker.

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PER CURIAM:

Mario Lopez-Contreras appeals his 210-month sentence, imposed pursuant

to his guilty plea, for conspiracy to possess with intent to distribute 500 grams or

more of methamphetamine, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(B)(viii), and possession with intent to distribute 50 grams or more of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii). He

argues that the district court violated his Sixth Amendment rights under Blakely v.

Washington, 124 S.Ct. 2531 (2004), by sentencing him based on additional drug

quantities and firearms not charged in his indictment, proved to a jury 

beyond a reasonable doubt, or admitted by him during his guilty plea hearing. No 1

reversible error has been shown; we affirm.

At the guilty plea hearing, Lopez-Contreras agreed to the government’s fact

proffer (1) that he had delivered approximately 498.4 grams gross weight of
 Lopez-Contreras instead argued that his base offense level should have been calculated by using 2

the lower weight ofthe “mixture or substance”, as opposed to the”actual” methamphetamine weight,

which purportedly would have resulted in a lower equivalent weight of marijuana. And he did not

3

methamphetamine to a confidential informant and (2) that approximately 3,732

grams gross weight of methamphetamine, over $135,000 in currency, and over 2

kilograms of a substance used in the production of methamphetamine were seized

from a trailer in which Lopez-Contreras was living. The government did not

mention facts about firearms.

The presentence investigation report (PSI) calculated a base offense level of

38, under U.S.S.G. § 2D1.1(c)(1), based on not only the quantities of the

methamphetamine and the cutting agent mentioned at the guilty plea hearing, but

also on new information about additional quantities of methamphetamine and dmethamphetamine hydrochloride (“ICE”) seized from the trailer. The PSI

converted each of these substances into their marijuana equivalents to arrive at the

base offense level. The PSI then added a two-level enhancement, under U.S.S.G.

§ 2D1.1(b)(1), based on new information that agents had seized two handguns and

ammunition during the search of the trailer. At sentencing, the district court

adopted the PSI’s fact determinations. 

Lopez-Contreras admits that he did not raise a constitutional objection to

the district court’s application of the Sentencing Guidelines. So, we review his 2
object to the § 2D1.1(b)(1) firearm enhancement.

4

claim for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005), petition for cert. filed, No. 04-1148 (U.S. Feb. 23, 2005). On plain

error review, a defendant must show “error” that is “plain” and that “affect[s]

substantial rights.” United States v. Olano, 113 S.Ct. 1770, 1776 (1993). It is

only after these conditions have been satisfied that an appellate court then may

exercise its discretion and correct the error if it seriously affects the fairness,

integrity or public reputation of the judicial proceedings. Id.

In Rodriguez, we stated that Booker error is the mandatory, rather than the

advisory, application of the Federal Sentencing Guidelines. Rodriguez, 398 F.3d

at 1298. And we wrote that the defendant bears the burden of persuading us that

this error caused him prejudice: he cannot survive plain-error analysis unless he

can show “a reasonable probability of a different result if the guidelines had been

applied in an advisory instead of binding fashion by the sentencing judge.” Id.

at 1299, 1301.

Lopez-Contreras has not satisfied the third element of plain error review. 

Nothing in the record indicates that the district court might have imposed a

different sentence under the new advisory sentencing scheme. We are aware that,

after counsel indicated that Lopez-Contreras had no prior criminal record and
5

certainly would be deported after serving his sentence, the district court sentenced

Lopez-Contreras at the bottom of the guideline range. But the district court later

stated that it was imposing a sentence at the bottom of the guideline range because

“it determine[d] that that is the appropriate punishment for the offense behavior in

this case because the defendant will be deported at the end of his sentence.” Cf.

United States v. Shelton, 400 F.3d 1325, 1332-34 (11th Cir. 2005) (district court’s

statements expressing hesitation in applying the Guidelines as mandatory can be

evidence that sentencing result might have been different had district court applied

Guidelines as advisory). Lopez-Contreras has not shown “a reasonable probability

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

binding fashion by the sentencing judge.” Rodriguez, 398 F.3d at 1301.

AFFIRMED.