Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals For the First Circuit

No. 03-2013

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES MICHAEL COYNE,

Defendant, Appellant.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before

Selya, Lynch and Lipez, Circuit Judges.

Tina Schneider on brief for appellant. Joseph N. Laplante, Assistant United States Attorney, and Thomas J. Colantuono, United States Attorney, on brief for appellee.

August 24, 2005 Per Curiam. After this court affirmed the sentence of

defendant-appellant James Michael Coyne, United States v. Coyne,

(1st Cir. Nov. 3, 2004) (per curiam)

(unpublished), Coyne petitioned for certiorari. While his

petition was pending, the Supreme Court decided United States v.

Booker,

(2005), and, in a routine order, granted

the petition for certiorari, vacated this court's judgment, and

remanded for further consideration in light of Booker, Coyne v.

United States,

(2005). We then allowed Coyne's

request to file a supplemental brief and invited the government

to file a supplemental brief as well. After reviewing those

briefs and the underlying record, we again uphold Coyne's

sentence and reinstate our original judgment.

ANALYSIS

Coyne seeks a remand for resentencing under post-Booker

standards. In support of that request, he argues, first, that

this court should reconsider United States v. Antonakopoulos,

(1st Cir. 2005), which places the burden on a

defendant raising an unpreserved Booker argument on appeal to

"point to circumstances creating a reasonable probability that

the district court would impose a different sentence more

favorable to the defendant under the new 'advisory Guidelines'

Booker regime."

. Second, Coyne argues, in the

alternative, that he has satisfied the third prong of the

-3- Antonakopoulos plain-error standard for reviewing unpreserved

Booker errors.1 Neither of those arguments is meritorious.

The first argument can be quickly disposed of. We have

already made clear that subsequent panels are bound to follow

Antonakopoulos. See United States v. Villafane-Jimenez,

(1st Cir. 2005) (per curiam); United States v. Bailey,

(1st Cir. 2005).

Nor has Coyne satisfied his burden of showing a

"reasonable probability" that the district court would have

imposed a lower sentence had it realized that the Guidelines

could have been treated as advisory. Antonakopoulos,

; see also United States v. Heldeman,

(1st

Cir. 2005). To the contrary, comments by the sentencing judge on

the seriousness of Coyne's drug offense indicate that the judge

would likely have imposed the same sentence under an advisory

Guidelines regime. See United States v. Vega Molina,

(1st Cir. 2005); United States v. McLean,

(1st Cir. 2005). Other indications that a lighter sentence

would have been improbable under advisory Guidelines are that the

judge declined to exercise his discretion to depart downward

based on various mitigating factors argued by the defendant and

imposed a harsher sentence than the government recommended. See

1 It is undisputed that the alleged error--sentencing under mandatory Guidelines--was unpreserved and that defendant has satisfied the first two prongs of the plain-error test.

-4- United States v. Luciano,

(1st Cir. July

8, 2005).

The fact that the court sentenced Coyne to the bottom

of the applicable Guideline range is not sufficient, in itself,

to indicate a reasonable probability that the court would have

imposed an even lower sentence if it had the discretion to do so.

United States v. Kornegay,

(1st Cir. 2005).

And, even assuming, without deciding, that Coyne's post-

sentencing conduct as an allegedly "model inmate" has any

relevance here, such conduct would not likely result in a lighter

sentence for the underlying offense.

CONCLUSION

For the above reasons, we again affirm the sentence,

and order our earlier judgment reinstated.

So ordered.

-5-