United States v. Alvaro Bolanos-Munoz

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 27, 2006
No. 02-15861
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 01-00294-CR-T-17
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALAVARO BOLANOS-MUNOZ, et al.,
Defendants-Appellants.
__________________________
Appeals from the United States District Court for the
Middle District of Florida
_________________________
(February 27, 2006)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before EDMONDSON, Chief Judge, DUBINA and COX, Circuit Judges.
PER CURIAM:
This case is before the court for consideration in light of United States v.
Booker, __ U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). A jury found the
defendants guilty of (1) possession with intent to distribute cocaine while aboard a
vessel subject to U.S. jurisdiction, in violation of the Maritime Drug Law
Enforcement Act, 46 U.S.C. App. § 1903(a) and 21 U.S.C. § 841(b)(1)(A)(ii); and
(2) conspiracy to possess with intent to distribute cocaine while aboard a vessel
subject to U.S. jurisdiction, in violation of 46 U.S.C. App. § 1903(a), (j), and 21
U.S.C. § 841(b)(1)(A)(ii). We previously affirmed the defendants’ convictions
and sentences. See United States v. Bolanos-Munoz, 103 Fed. App’x. 665 (11th
Cir. 2004) (Table Decision). The Supreme Court vacated our prior decision and
remanded the case to us for further consideration in light of Booker. Bolanos-
Munoz v. United States, 125 S. Ct. 1016, 160 L. Ed. 2d 1038 (2005). For the
reasons that follow, we once again affirm the defendants’ convictions and
sentences.
Under the Supreme Court’s decision in Booker, “the district courts could
have made both a constitutional and a statutory error in sentencing defendants . . .
.” United States v. Mathenia, 409 F.3d 1289, 1291 (2005). “The constitutional
error is the use of the extra-verdict enhancements to reach a guidelines result that
is binding on the sentencing judge: the error is in the mandatory nature of the
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guidelines once the guidelines range has been determined.” Id. (quotations and
citations omitted). The statutory error happens “when the district court misapplies
the [g]uidelines as binding as opposed to advisory.” United States v. Shelton, 400
F.3d 1325, 1331 (11th Cir. 2005).
In the instant case, the defendants raised, among other things, a Booker-type
issue in their Initial Brief on appeal. However, the defendants did not present this
issue in the district court. As such, we review their sentencing challenges for plain
error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert.
denied, 125 S. Ct. 2935 (2005); United States v. Sanchez, 269 F.3d 1250, 1280
(11th Cir. 2001). At sentencing, the district court increased Alvaro’s offense level
based upon his role as the captain of the subject vessel, imposing his sentence
under the belief the guidelines were mandatory. Therefore, Alvaro’s appeal
involves both Booker constitutional and statutory error. See Shelton, 400 F.3d at
1330-31. As to Rodrigo, the district court imposed his mandatory guidelines
sentence without using any extra-verdict enhancements. Thus, Rodrigo’s appeal
only involves Booker statutory error. See id.Although both defendants meet the first two prongs of the plain error test,
neither of them can satisfy the third prong concerning “the burden of
demonstrating that the error has affected his substantial rights.” United States v.
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Fields, 408 F.3d 1356, 1360 (11th Cir. 2005). To make this determination, “we
ask whether there is a reasonable probability of a different result if the guidelines
had been applied in an advisory instead of binding fashion by the sentencing judge
in this case.” Rodriguez, 398 F.3d at 1301. And, based on our review of the
record, there is no indication that the district court would have imposed lesser
sentences had it known that the guidelines were advisory. The defendants’
contention that the district court would have imposed lesser sentences because it
believed both defendants should be sentenced at the bottom or lowest end of the
guideline range is without merit. As we found in Fields, such a view or belief by
the district court “does not establish a reasonable probability that the court would
have imposed a lesser sentence under an advisory regime.” 408 F.3d at 1360-61(agreeing “with the First, Fourth, Fifth and Eighth Circuits that the fact that the
district court sentenced [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”). Accordingly, we affirm the defendants’ sentences
for the reasons outlined herein, and reinstate our prior opinion affirming the
defendants’ convictions and sentences.
OPINION REINSTATED; CONVICTIONS AND SENTENCES
AFFIRMED.
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