FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 27, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-14707

Non-Argument Calendar

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D.C. Docket No. 04-00220-CR-T-30-MSS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EMILIO ECHARTE,

Defendant-Appellant.

__________________________

Appeal from the United States District Court for the

Middle District of Florida

_________________________

(June 27, 2005)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges. 

PER CURIAM:
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Emilio Echarte appeals his two and one-half year sentence imposed for

violating the terms of his supervised release. On appeal, Echarte requests that his

case be remanded for resentencing based on the sentencing range being part of an

unconstitutional sentencing scheme and argues for the first time that the holdings

of Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999),

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),

and Blakely v. Washington, 542 U.S. , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)

cast serious doubt on the continued validity of the Federal Sentencing Guidelines. 

Because Echarte failed to raise a constitutional challenge to his sentence in

the district court, we review his claim only for plain error. See United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain error review, “[a]n

appellate court may not correct an error [that] the defendant failed to raise in the

district court unless there is ‘(1) error, (2) that is plain, and (3) that affects

substantial rights. If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously

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

at 16 (internal citation omitted). 

In Apprendi v. New Jersey, the Supreme Court held that, “[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the
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prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” 530 U.S. at 490, 120 S.Ct. at 2362-63. In Blakely, the

Supreme Court, examining the state of Washington’s sentencing guidelines, held

that the imposition of a sentencing enhancement must be supported by facts that

were either admitted by the defendant or found beyond a reasonable doubt by the

jury. Blakely, 542 U.S. at ___, 124 S. Ct. at 2538. After the parties filed their

briefs in the instant appeal, the Supreme Court issued its opinion in Booker,

extending the reasoning of Blakely to the federal Sentencing Guidelines. United

States v. Booker, 543 U.S. ___, ___, 125 S.Ct. 738, 749 (2005). In so holding, the

Court concluded that it was the mandatory nature of the Sentencing Guidelines that

rendered them incompatible with the Sixth Amendment’s guarantee to the right to a

jury trial. Id. at ___, 125 S.Ct. at 749-51. Thus, it 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 ___, 125 S.Ct. at 767. 

Importantly, although the defendants in Booker received sentences

including terms of supervised release, because they had just been sentenced, they

were not factually postured to face, or suffer from, revocation of supervised

release. Accordingly, the Supreme Court had no instance to address the Sixth
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Amendment implications of 18 U.S.C. § 3583(e) or of Chapter 7 of the sentencing

guidelines. 

This Circuit also has yet to address sentences imposed under Booker for

violations of supervised release. However, prior to Booker, we have held that the

policy statements of Chapter 7 of the Sentencing Guidelines are merely advisory

in imposing a sentence upon the revocation of supervised release. See United

States v. Cook, 291 F.3d 1297, 1301 (11th Cir. 2002) (holding that the Sentencing

Commission has not yet promulgated any binding probation revocation guidelines;

instead, the Sentencing Commission has opted for the flexibility of advisory policy

statements, which are nonbinding on the courts); United States v. Brown, 224

F.3d 1237, 1242 (11th Cir. 2000) (holding that the district court must consider,

but is not bound by, the policy statements of Chapter 7 of the Sentencing

Guidelines in imposing a sentence upon the revocation of supervised release). 

Accordingly, prior to Booker, so long as there was some indication that the district

court had considered the guidelines before imposing a sentence outside of the

Chapter 7 recommended range, the sentence would be upheld. United States v.

Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Moreover, just as sentencing

for revocation has always been advisory, Booker also allows for advisory
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sentencing based on factors in § 3553(a). See Booker, 543 U.S. at ___, 125 S.Ct.

at 743. 

Other circuits that have directly addressed sentences imposed under Booker

for violations of supervised release generally have held that the imposition of such

sentences did not result in Booker error because the sentencing guidelines

associated with supervised release violations were considered advisory before

Booker. See United States v. Edwards, 40 F.3d 591, 592-93 (8th Cir. 2005)

(granting Anders motion to withdraw after concluding that any Booker challenge

to appellant’s sentence following revocation of supervised release was frivolous

and explaining that Booker’s effect on sentences imposed for supervised release

violations is “far less dramatic” because the Sentencing Guidelines associated with

supervised-release violations were considered advisory even before Booker);

United States v. Fleming, 397 F.3d 95, 101 (2d Cir. 2005) (holding that

defendant’s two-year sentence for “massive” violations of supervised release was

“reasonable” under Booker, and that remand was not necessary because, even

though the revocation sentence was imposed pre-Booker, the district court

appreciated the fact that the guideline sentencing regime was advisory with respect

to revocation of supervised release).
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No plain error exists in this case because the first prong of the test is not

satisfied. The guidelines system concerning revocation of supervised release

under which Echarte’s sentence was imposed is advisory, not mandatory. Thus,

there was no Booker error. Because the first prong is not satisfied, we do not

reach the other prongs.

For the above stated reasons, Echarte’s sentence is affirmed.

AFFIRMED.