UNITED STATES of America, Appellee, v. Martin MARTINEZ-NORIEGA, Appellant, 418 F.3d 809

COLLOTON, Circuit Judge. Martin Martinez-Noriega pled guilty to a charge of possession with intent to distribute cocaine, and the district court sentenced him to a term of 151 months’ imprisonment. Martinez-Noriega contends that the district court’s computation of the applicable United States Sentencing Guidelines violated his plea agreement with the United States. He also seeks to raise a claim based on the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm. I.

On November 27, 2002, Omaha police officers executed a search warrant at Martinez-Noriega’s residence and seized more than 200 grams of powder cocaine and $5,503 in cash. A grand jury returned an indictment charging one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1), and one count of criminal forfeiture directed at the seized currency. Martinez-Noriega then entered into a plea agreement with the government, in which he agreed to plead guilty to the drug trafficking offense and forfeit any claim to the currency.

With regard to the sentence to be imposed according to the sentencing guidelines, paragraph 10 of the agreement provided that “[pjursuant to Rule 11(c)(1)(C), Fed. R.Crim. Pro., the parties hereby agree that you should be held responsible beyond a reasonable doubt for at least 200 grams but less than 300 grams of cocaine and, therefore, pursuant to U.S.S.G. § 2D1.1, the defendant’s base offense level is 20.” (Add. at 4). The agreement also stated that “the parties agree that you have not met the criteria for an aggravating role but neither do you meet the criteria for a mitigating role.” (Add. at 1).

There was no reference in the agreement to Martinez-Noriega’s criminal history category under

Chapter 4 of the guidelines, or to any potential adjustment to his offense level as a “career offender” under USSG § 4B1.1. Prior to the sentencing hearing, the United States Probation Office prepared a pre-sentence investigation report (“PSR”). The PSR recommended that because Martinez-Noriega had sustained two prior felony drug convictions, the court should apply an offense level of 32 pursuant to the career offender guideline, USSG § 4B1.1(b)(C). less three levels for acceptance of responsibility pursuant to USSG § 3El.l(b).

Martinez-Noriega objected, arguing that because his plea agreement stipulated that “the defendant’s base offense level is 20,” and did not refer to USSG § 4B1.1, the court was precluded from applying the career offender guideline. The district court disagreed, and computed Martinez-Noriega’s offense level as recommended by the probation office. The court thus found a sentencing range of 151-188 months, and imposed a sentence at the bottom of that range. II. Federal Rule of Criminal Procedure 11(c)(1)(

C) provides that the government and a defendant may enter into a plea agreement specifying that the government will “agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).” The parties in this case designated that paragraph 10 of the plea agreement, relating to “the defendant’s base offense level,” was “pursuant to Rule 11(c)(1)(C).” Thus, unlike a case involving an agreement of the nonbinding variety under Rule 11(c)(1)(B), e.g., United States v.

Gomez, 326 F.3d 971, 975 (8th Cir.2003), once the district court accepted the Martinez-Noriega plea agreement, it was bound to apply the recommendation concerning a base offense level. The dispute in this case concerns only how paragraph 10 of the plea agreement should be interpreted, and we review the district court’s

interpretation and enforcement of a plea agreement de novo. United States v. DeWitt, 366 F.3d 667, 669 (8th Cir.2004).

As noted, paragraph 10 states that “the parties hereby agree that you should be held responsible beyond a reasonable doubt for at least 200 grams but less than 300 grams of cocaine and, therefore, pursuant to U.S.S.G. § 2D1.1, the defendant’s base offense level is 20.” The career offender guideline, which the district court ultimately applied to determine Martinez-Noriega’s offense level, provides (with exceptions not applicable here) that “if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply.” USSG § 4Bl.l(b).

In Martinez-Noriega’s case, the offense level under the career offender guideline was greater than the offense level otherwise applicable. Thus, Martinez-Noriega argues that because the “base offense level” under § 2D1.1 would be rendered inapplicable if the career offender enhancement of § 4B1.1 were applied, the existence of a specific stipulation concerning the base offense level necessarily implied that his offense level would be computed without regard to § 4B1.1. We reject Martinez-Noriega’s argument because we find it inconsistent with the structure of. the sentencing guidelines.

Cf. 11 Williston on Contracts § 30:20, at 219 (4th ed. 1999) (“Where the subject matter of the contract between the parties lies in an area covered by federal law, they necessarily adopt, as a portion of their agreement, the applicable provisions of the particular Act of Congress.”)- The “Application Instructions” for use of the guidelines set forth nine sequential steps to be followed by the sentencing court in applying the provisions of the guidelines manual. The second step calls for the court to “[d]etermine the base offense level ... contained in the particular guideline in

Chapter Two.” USSG § lBl.l(b). The next three steps direct the court to apply adjustments from

Chapter Three of the guidelines. The sixth step then states that the court should “[d]etermine the defendant’s criminal history category as specified in Part A of

Chapter Four,” and “[djetermine from Part B of

Chapter Four any other applicable adjustments.” USSG § lBl.l(f) (emphasis added). These adjustments from Part B include the enhanced offense levels for career offenders pursuant to USSG § 4B1.1. The guidelines contemplate, therefore, that even when a defendant ultimately is subject to an adjustment pursuant to the career-offender guideline, the court will first compute the defendant’s “base offense level” under

Chapter Two of the guidelines. By stipulating to a base offense level of 20 pursuant to USSG § 2D1.1, the parties in this case definitively resolved the determination called for by step two of the application instructions, § IB 1.1(b), but they did not address whether an adjustment applied at step six of the process, § lBl.l(f), pursuant to USSG § 4B1.1. The terminology of the guidelines supports this view. “Base offense level” is a term of art used in

Chapter Two of the guidelines.

Chapter Two pertains to “offense conduct,” and the

chapter is organized by offenses. “Each offense has a corresponding base offense level and may have one or more specific offense characteristics that adjust the offense level upward or downward.” USSG Ch. 2, intro, comment, (emphasis added). The “base offense level” may be increased or decreased according to adjustments prescribed by Chapters Two and Three of the guidelines.

Chapter Four, by contrast, relates to “Criminal History and Criminal Livelihood.” When a defendant qualifies as a “career offender,” § 4B1.1 does not establish a “base offense level.” Instead, notwithstanding imprecise use of terminology reflected in some of our cases, see post at 815-16, it sets an “offense level” that will apply if it is greater than the “offense level” otherwise applicable — that is, the “offense level” that otherwise would apply based on the “base offense level” of

Chapter Two, increased or decreased by specific offense characteristics and adjustments from

Chapter Two and

Chapter Three. See, e.g., United States v. LaBonte, 520 U.S. 751, 753-54, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997) (explaining that the Sentencing Commission sought to implement 28 U.S.C. § 994(h) “by promulgating the ‘Career Offender Guideline,’ which created a table of enhanced total offense levels to be used in calculating sentences for ‘career offenders.’ ... [The Guideline] assigns the appropriate offense level based on the so-called ‘offense statutory maximum.’ ”) (emphases added); United States v.

Zimmer, 299 F.3d 710, 721 (8th Cir. 2002) (“The district court applied the otherwise applicable adjusted base offense level of 40 and not the applicable career offender offense level of 37.”); United States v. Gomez, 271 F.3d 779, 781 (8th Cir.2001) (“Because the offense level enhanced by the career offender provision is greater than the base offense level, the career offender offense level controls.”); United States v.

Collins, 412 F.3d 515, 523-24 (4th Cir.2005) (“Even if the judge had sentenced Collins at a base offense level of twelve, the application of the career offender enhancement still would have increased his total offense level to a thirty-two.”) (emphasis in original). By securing an agreement that “pursuant to USSG § 2D1.1,” the “base offense level” is a certain number, a defendant has solidified where he will start in

Chapter Two of the guidelines, but he has not protected himself against adjustments in

Chapter Four. A defendant, of course, is uniquely qualified to know his own criminal history. If he perceives a risk that his offense level may be enhanced under

Chapter Four once the probation office has completed its thorough investigation of his criminal history, then he may seek to negotiate an understanding about the criminal history provisions. But he should not take comfort in an agreement that only resolves the “base offense level” under

Chapter Two, because it does not bind the court with respect to

Chapter Four. Accordingly, the district court did not err in applying the career-offender guideline to Martinez-N oriega. III. In a letter filed pursuant to Federal Rule of Appellate Procedure 28(j), Martinez-Noriega raised the possible applicability to his case of the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which was pending when this case was submitted.

Booker held that the Sixth Amendment precludes a sentencing judge from imposing a sentence under the mandatory federal sentencing guidelines that exceeds the punishment that could be imposed based solely on facts admitted by the defendant or proved to a jury beyond a reasonable doubt (other than prior convictions). Id. at 756. As a remedy, the Court declared that the sentencing guidelines are effectively advisory in all cases. Id. at 757. Martinez-Noriega did not challenge the constitutionality or mandatory nature of the guidelines in the district court.

Thus, assuming arguendo that he may raise a Booker claim for the first time by way of a Rule 28(

j) letter, we review the claim for plain error. See Fed.R.Crim.P. 52(b); United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir.2005) (en banc). Because the district court determined the applicable sentencing range pursuant to the career-offender guideline, which applies based on the defendant’s prior convictions, this case involves no violation of the Sixth Amendment.

See Booker, 125 S.Ct. at 756 (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”); United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005). In light of Booker, however, the district court’s imposition of sentence did involve non-constitutional error, because the district court applied the mandatory guidelines, while Booker subsequently held that the guidelines are only advisory.

The question presented by the supplemental filing, therefore, is whether the district court’s application of a mandatory sentencing guideline range to Martinez-Noriega is a plain error warranting relief. As our court reiterated in Pirani, plain error review is governed by the four-part test set forth in United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). See also Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

In order to warrant correction, there must be an error, that is plain, that affected the defendant’s substantial rights, and that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 466-67, 117 S.Ct. 1544. The first two factors— an error that is plain — are satisfied here. See Pirani, 406 F.3d at 550.

However, to demonstrate that the error affected his substantial rights, the defendant also must demonstrate that there was “a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” Id. at 552. We do not believe that Martinez-Noriega has demonstrated such a probability. Although he was sentenced at the low end of the applicable guideline range, a low-end sentence is insufficient to demonstrate a reasonable probability that a more favorable sentence would have been imposed absent the mandatory guidelines. Id. at 553.

The district court did not indicate that it thought the sentence imposed was unreasonable, or that it would have imposed a lesser sentence if not bound by the guidelines. The record as a whole does not show any other basis to establish a reasonable probability of a more lenient sentence under an advisory guideline regime.

To the contrary, the undisputed presentence report shows that Martinez-Noriega was a career offender under the guidelines, that he scored 15 points and qualified for criminal history category VI even without regard to his career-offender status, and that he was twice deported from the United States in 1996 and 2001 after felony convictions, only to reenter illegally and commit another felony drug offense after each removal. (PSR ¶¶ 38-46). Therefore, we conclude that Martinez-Noriega has not demonstrated a plain error warranting relief under Rule 52(

b) as applied in Pirani. ‡ * H? H* ‡ * The judgment of the district court is affirmed. . The Honorable Thomas M. Shanahan, United States District Judge for the District of Nebraska.