[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15339 December 13, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-14028 CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL DUKE BUTLER,
Defendant-Appellant.
____________________________
Appeal from the United States District Court
for the Southern District of Florida
_____________________________
(December 13, 2005)
Before EDMONDSON, Chief Judge, BARKETT, Circuit Judge, and HUNT*,
District Judge.
PER CURIAM:
*
Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of Georgia,
sitting by designation.
Defendant Michael Duke Butler appeals his 33-month sentence for
possession with intent to distribute a mixture containing methamphetamine.
Butler pleaded guilty and admitted to only those facts contained in his one-count
indictment: that he possessed a quantity of drugs “in excess of five grams.”
Butler’s pre-sentence investigation report indicated that officers actually recovered
23.9 grams of drugs from Butler’s possession. The district court relied on the
23.9-gram quantity in computing Butler’s initial base offense level under the
federal sentencing guidelines.1 Based on the base offense level and Butler’s
criminal history, he was subject to a 30-37 month prison sentence; he was
sentenced to 33 months imprisonment.
Butler argues that his sentence violated the Supreme Court’s decision in
United States v. Booker, -- U.S. --, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005),
because the sentence was enhanced based on facts that were neither proved in
court nor admitted to by him. He contends that his initial base offense level under
the guidelines should have been based only on his possessing “in excess of five
1
The court applied a base offense level of 20, which corresponds with possessing “[a]t least 20
G but less than 30 G of Methamphetamine.” U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(10)
(2003).
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grams.”2 We conclude that the court committed harmful error and remand for
resentencing.
Butler objected to his sentencing enhancements in district court; so we
review his sentence de novo. United States v. Paz, 405 F.3d 946, 948 (11th Cir.
2005).
The district court committed constitutional Booker error. See United States
v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005) (“The holding in Booker is
that the Sixth Amendment right to trial by jury is violated where under a
mandatory guidelines system a sentence is increased because of an enhancement
based on facts found by the judge that were neither admitted by the defendant nor
found by the jury.”). We, however, will disregard that error if the error was
harmless. Paz, 405 F.3d at 948 (citing Fed. R. Crim. P. 52(a)). Because Butler
alleges constitutional Booker error, harmless error may only exist “where it is
clear beyond a reasonable doubt that the error complained of did not contribute to
the [sentence] obtained.” United States v. Candelario, 240 F.3d 1300, 1307 (11th
Cir. 2001) (emphasis added). The government bears the burden of proving that
the error was harmless. Paz, 405 F.3d at 948.
2
Butler contends that he should have been subject to an initial base offense level of 16, which
corresponds with possessing “[a]t least 5 G but less than 10 G of Methamphetamine.” U.S.
SENTENCING GUIDELINES MANUAL § 2D1.1(c)(12) (2003).
3
The government points to two facts that it claims support its argument that
the court’s Booker error was harmless: (1) the court’s professed concern about the
“quality and nature” of Butler’s prior drug-related convictions,3 and (2) Butler
received a sentence in the middle of the applicable sentencing range. We believe
that these facts are insufficient to carry the government’s burden.
In those cases in which we have deemed constitutional Booker error
harmless, the sentencing court plainly stated its intent to impose the same sentence
under an advisory guidelines system. See United States v. Robles, 408 F.3d 132
(11th Cir. 2005) (“[M]y sentence would be the same regardless of whether Blakely
had invalidated the guidelines or not, because I would apply them as guidelines
and reach the same conclusion that I will here today.”); see also United States v.
Lee, 427 F.3d 881 (11th Cir. 2005) (concluding that constitutional Booker error
was harmless beyond a reasonable doubt when court stated it would impose same
sentence under advisory guidelines system). Cf. Paz, 405 F.3d at 949 (remanding
for resentencing when court stated that sentence would be reduced under advisory
guidelines system). The district court made no similar statements of intent in
Butler’s case. A plainly expressed statement might not always be needed. But
3
The court described Butler’s prior conviction for carrying a gun during a drug-related offense
as “a little disturbing” and “troublesome.”
4
without a strong indication of some kind from the sentencing court, we cannot say
that it is clear beyond a reasonable doubt that the error did not contribute to
Butler’s sentence.
That the court imposed a sentence in the middle of the guidelines range is
not sufficiently indicative of harmless error. Never have we concluded that the
sentence’s place within the middle of the range, taken alone, is sufficient indicia of
harmless error. See United States v. Mejia-Giovani, 416 F.3d 1323 (11th Cir.
2005) (noting mid-range sentence among several factors in affirming sentence,
including court’s repeated warnings that defendant could be subject to upward
departure). Merely sentencing Butler in the middle of the guidelines range is not
enough to indicate clearly how the court would have sentenced Butler under an
advisory guidelines system. “Where it is unclear whether the court would have
imposed the same sentence but for the mandatory guidelines, the government
cannot show that the error was harmless.” United States v. Cotledge, No. 04-
15648 (11th Cir. Aug. 10, 2005).
Because the government cannot meet its burden to show harmless error, we
VACATE Butler’s sentence and REMAND to the district court for resentencing.
5