[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 30, 2005
No. 05-12662 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00018-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLENN MCCLOUD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 30, 2005)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Appellant Glenn McCloud appeals his 240-month sentence for distribution
of cocaine, in violation of 21 U.S.C. § 841(a)(1). McCloud appeals the district
court’s use of judge-found facts to increase his sentence under the United States
Sentencing Guidelines (“guidelines”) system, pursuant to United States v. Booker,
543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). McCloud also contests
the district court’s finding that facts used to increase his sentence were proven by a
preponderance of the evidence.
McCloud argues on appeal that the district court erred by enhancing his
sentence based on facts that were neither admitted by him nor proven to a jury
under a mandatory guidelines system. Specifically, McCloud argues that his base
offense level should not have been calculated based on cocaine seized from the two
apartments he rented for use by himself and his co-conspirators in their drug
dealing operation, and should not have been enhanced by the presence of a
handgun during the charged offense, because he did not admit possession of the
additional cocaine or the handgun, and those facts were not proven to a jury.
McCloud also contends that the district court applied the guidelines as mandatory,
rather than advisory, because the court did not explicitly state that they were
advisory, or consider other factors in fashioning his sentence.
We review preserved-error Booker claims on appeal de novo, but reverse
only for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)
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(citation omitted). There are two harmless error standards; one is applicable to
Booker constitutional errors, and the other to Booker statutory errors. United
States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). A Booker constitutional
error violates an individual’s Sixth Amendment right to trial by jury, where a judge
enhances an individual’s sentence based solely on judicially found facts pursuant
to a mandatory guidelines system. Paz, 405 F.3d at 948. However, “the use of
extra-verdict enhancements in an advisory guidelines system is not
unconstitutional.” United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.),
cert. denied, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005). Booker statutory error
occurs when the district court applies the guidelines as mandatory, rather than
advisory. United States v. Shelton, 400 F.3d 1325, 1329-30 (11th Cir. 2005).
After reviewing the record, we conclude that the district court did not
commit Booker constitutional or statutory error because it applied the guidelines as
advisory, rather than mandatory. The record demonstrates that during McCloud’s
Rule 11 hearing prior to sentencing, the district court explicitly acknowledged that
the guidelines were advisory, but ultimately chose to sentence him to the statutory
maximum within the guidelines, observing that McCloud could easily have
received a much harsher sentence if not for the benefit of his plea agreement.
McCloud also argues on appeal that the government did not meet its burden
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of proving by a preponderance of the evidence that he should be held accountable
for the additional cocaine seized from his apartments and included in his relevant
conduct, or for the handgun that was present during the charged offense and used
to enhance his sentence. McCloud contends that the evidence connecting him with
the apartments where the cocaine was seized was insufficient, in the absence of any
physical evidence directly linking him to the cocaine. He also argues that his
sentence should not have been enhanced for possession of a firearm because he
never admitted to that conduct.
Although Booker has rendered the sentencing guidelines merely advisory,
the standards used to review the application of the guidelines remain the same.
United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). We review the
district court’s factual findings for clear error and its application of the guidelines
to those facts de novo. United States v. Trujillo, 146 F.3d 838, 847 (11th Cir.
1998). “When a defendant objects to a factual finding that is used in calculating
his guideline sentence, such as drug amount, the government bears the burden of
establishing the disputed fact by a preponderance of the evidence.” Rodriguez, 398
F.3d at 1296 (citation omitted).
With respect to offenses involving contraband (including controlled
substances), the defendant is accountable for all quantities of
contraband with which he was directly involved and, in the case of a
jointly undertaken criminal activity, all reasonably foreseeable quantities of
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contraband that were within the scope of the criminal activity that he jointly
undertook.
U.S.S.G. § 1B1.3, comment. (n.2).
Section 2D1.1(b)(1) provides a two-level enhancement “[i]f a dangerous
weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). “The
adjustment should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1,
comment. (n.3). “Once the prosecution has shown by a preponderance of the
evidence that the firearm was present at the site of the charged conduct, the
evidentiary burden shifts to the defendant to show that a connection between the
firearm and the offense is clearly improbable.” United States v. Hall, 46 F.3d 62,
63 (11th Cir. 1995).
After reviewing the record, we conclude that the district court did not clearly
err by finding that a preponderance of the evidence supported basing McCloud’s
offense level on additional cocaine seized from his apartments, or by enhancing his
sentence based on the presence of a handgun during the offense conduct. The
government established McCloud’s legal possession of the two apartments through
paperwork, intercepted phone conversations, his possession of keys to both
apartments at the time of his arrest, and police observation of McCloud or his
vehicle at each apartment on the day of his arrest, prior to the searches. McCloud
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did not present any evidence that he was not in legal possession of the apartments,
but instead established only that no physical evidence seized during the searches
linked him to the particular drugs that were found in the apartments. The district
court did not need evidence linking McCloud to the particular drugs seized from
his apartments in order to hold him accountable for those drugs at sentencing
because they were reasonably foreseeable drug quantities within the scope of
McCloud’s joint criminal undertaking.
A preponderance of the evidence established that McCloud’s co-conspirator
possessed a firearm during the charged offense drug sale, and another firearm was
found during the search of one of McCloud’s apartments. McCloud did not
present any evidence that the firearms were not connected to the charged offense or
his relevant conduct, so the district court did not clearly err by enhancing his
sentence based on their presence.
For the foregoing reasons, we affirm McCloud’s sentence.
AFFIRMED.
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United States v. Glenn McCloud
Combined Opinion