[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 17, 2005
No. 04-10659
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-14033-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KYLE EBRITE WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 17, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before ANDERSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Kyle Ebrite Williams was convicted of conspiracy to manufacture
methamphetamine, in violation of 21 U.S.C. § 846. He appealed, challenging
(1) the sufficiency of the evidence; (2) the denial of his motion for a mistrial;
(3) the determination of drug quantity based on theoretical yield; and (4) the
imposition of an enhancement in his sentence for possession of a firearm. He
based this last argument on the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 403 (2004).
On November 29, 2004, we affirmed Williams’s conviction and sentence.
The Supreme Court granted certiorari, vacated our opinion, and remanded the case
to us for reconsideration in light of United States v. Booker, 543 U.S. –, 125 S.Ct.
738, 160 L.Ed. 621 (2005). Upon reconsideration, we affirm the conviction for the
reasons given in our prior opinion dated November 29, 2004. For the reasons that
follow, we affirm in part and vacate and remand in part Williams’s sentence.
In Booker,1 the Supreme Court held that Blakely applied to the federal
sentencing guidelines and that “the Sixth Amendment right to trial by jury is
violated where, under a mandatory guideline system, a sentence is increased based
on facts found by the judge that were neither admitted by the defendant nor found
by the jury.” United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005)
1
We now review Blakely arguments under Booker.
2
(citations omitted), cert. denied, 125 S. Ct. 2935 (2005). The constitutional error is
not that there were extra-verdict enhancements but “that there were extra-verdict
enhancements used in an mandatory guidelines system.” Id. at 1300. This court
has explained that a Booker error also results from the district court’s use of a
mandatory guidelines scheme, even in the absence of any constitutional error.
United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
Because Williams preserved his Booker challenge in the district court, we
review the sentence de novo, but will reverse only if the error was not harmless.
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). The burden is on the
government to show that the error was harmless and there are two standards for the
harmless error test. To establish that a constitutional error was not harmless, the
government must demonstrate that the error did not affect the defendant’s
substantial rights.2 To show statutory harmless error, the government is held to a
less demanding standard, but must show that, viewing the proceedings in their
entirety, the error had no effect or a very slight effect on the sentence.3 United
2
In other words, “where it is clear ‘beyond a reasonable doubt that the error complained of
did not contribute to the [sentence] obtained.’” Mathenia, 409 F.3d at 1291-92.
3
“The non-constitutional harmless error standard is not easy for the government to meet.
It is as difficult for the government to meet that standard as it is for a defendant to meet the third-
prong prejudice standard for plain error review.” Mathenia, 409 F.3d at 1292 (citing Paz, 405 F.3d
at 948-49; United States v. Garcia, 405 F.3d 1260, 1275-76 (11th Cir. 2005)).
3
States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005).
Here, the district court imposed an extra-verdict enhancement based on
Williams’s possession of a firearm and calculated the sentence under a mandatory
guideline regime. Thus, Williams’s sentence suffers from both constitutional and
statutory error, and we must reverse unless the government can show that the error
was harmless beyond a reasonable doubt.4
A review of the record does not establish that the error was harmless.
Williams was sentenced at the low end of the guidelines range. At sentencing,
however, the district court made no statements about the sentence it imposed other
than its determination that it should sentence Williams at the low end of the
guideline range because he faced a greater sentence than his codefendant due to his
criminal history. Without more, this is insufficient for the government to meet its
burden.
Although there was Booker error, there are still guidelines issues to be
addressed. The district court on remand must still correctly calculate the
guidelines range, and thus we examine whether the district court did so. See
United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (stating that after
Booker, district courts must consult the Guidelines and “[t]his consultation
4
If the government can meet this heavy burden, then it also would be able to meet the
statutory harmless error standard.
4
requirement, at a minimum, obliges the district court to calculate correctly the
sentencing range prescribed by the Guidelines”). We conclude that the district
court correctly calculated Williams’ guidelines range as 92 months to 115 months.
First, the district court properly imposed the firearm enhancement in
calculating that guidelines range. We review a district court’s findings of fact
related to a § 2D1.1(b)(1) firearm enhancement for clear error. United States v.
Hall, 46 F.3d 62, 63 (11th Cir. 1995). The guidelines require a two-level
enhancement of the defendant’s offense level for possession of a firearm. 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 to another offense.”
Id., comment. (n.3).
In the present case, the firearm was found in the defendant’s apartment.
Although he was not in the same room, he had access to the weapon. The
apartment also contained evidence of a methamphetamine lab, and as we have
observed in prior cases, weapons are often used in connection with drug activities.
See United States v. Terzado-Madruga, 897 F.2d 1099, 1120 (11th Cir. 1990).
Under the guidelines scheme, the district court was justified in applying the firearm
enhancement.
The district court also did not commit plain error in using the theoretical
5
yield of methamphetamine based on the available evidence to determine the drug
quantity at sentencing.5 As we have held, a “district court may estimate the lab’s
capability by calculating the potential methamphetamine yield based upon seized
precursor chemicals.” United States v. Carroll, 6 F.3d 735 (11th Cir. 1993).
Accordingly, on remand, the district court is required to sentence Williams
under an advisory Guidelines regime, and shall consider the Guidelines range of 92
to 115 months’ imprisonment and “other statutory concerns as well, see [18 U.S.C.
3553(a) (Supp. 2004).” Booker, 125 S. Ct. at 757.6
AFFIRMED in part; VACATED AND REMANDED in part.
5
Because the defendant did not raise this argument before the trial court, we examine it for
plain error. United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002). The defendant did dispute
the amount of methamphetamine used in the sentencing before the trial court, but in that dispute he
argued in favor of a 60 percent yield, which led to the amount used in sentencing, 4.7 grams. The
defendant now challenges the same process he argued for at trial. Therefore, his argument that this
court should apply a clear error standard, as opposed to plain error, is incorrect.
6
We do not mean to imply that on remand the district court must impose a lesser sentence.
Rather, we merely hold that the government has failed to meet its burden to show that the Booker
constitutional error of sentencing under a mandatory Guidelines regime was harmless.
We also will not attempt to decide now whether a particular sentence below or above the
Guidelines range might be reasonable in this case. If there is an appeal of the actual post-remand
sentence which raises that issue, we can decide it then.
6