[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 9, 2005
No. 05-10356 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00010-CR-ORL-22-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN FEDERICO BAUTISTA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 9, 2005)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Juan Federico Bautista appeals his sentence of ninety-seven months
imprisonment for conspiracy to import ecstasy in violation of 21 U.S.C. § 963. We
affirm.
On October 21, 2004, a jury convicted Bautista of conspiracy to import
ecstasy. The scheme involved couriers who transported ecstasy from the
Dominican Republic, to Miami, Florida, by commercial airline. The jury made no
finding as to the number of ecstasy tablets for which Bautista was responsible.
Following the trial, the United States Probation Office prepared a pre-
sentence investigation report. The PSI determined that the scheme involved four
couriers who made a total of five trips from the Dominican Republic to Miami,
each carrying one suitcase. Because authorities intercepted only one suitcase from
one of these trips, the PSI estimated the total amount of drugs involved. The PSI
considered that the intercepted suitcase contained 40,000 pills, and that the courier
who transported it was paid $4,500, the same amount as the other couriers. Based
on this evidence, the PSI concluded that each suitcase contained 40,000 tablets and
that Bautista was responsible for conspiring to import a total of 200,000 ecstacy
tablets.
The PSI assigned Bautista a base offense level of 36 pursuant to United
States Sentencing Guidelines Manual § 2D1.1(c)(2) (2004), because 200,000
ecstasy tablets were the equivalent of 25,000 kilograms of marijuana. It assigned
2
him a criminal history category of I because he had no criminal record. Before
sentencing, Bautista objected to the PSI on the grounds that Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), rendered the Guidelines
unconstitutional.
Bautista was sentenced on January 13, 2005, the day after the Supreme
Court decided United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). At the
hearing, the district court considered how to sentence Bautista in light of Booker,
given the fact that the jury did not make a finding as to the amount of ecstasy
attributable to Bautista. The court initially considered sentencing Bautista to the
lowest base offense level for a crime involving ecstasy by attributing a drug
quantity of only one ecstasy tablet to him. The court then explained that because
“the guidelines are no longer mandatory,” it could determine a higher drug
quantity. The court found that Bautista was responsible for 40,000 ecstasy tablets,
stating “[t]here’s no doubt that the 40,000 pills were proven beyond a reasonable
doubt.” Bautista raised a Booker objection to the district court’s finding regarding
the drug quantity.
The district court assigned Bautista a base offense level of 34 pursuant to
U.S.S.G. § 2D1.1(c)(3) because 40,000 ecstasy tablets were the equivalent of 5,000
kilograms of marijuana. The court did not adjust Bautista’s offense level. With an
3
offense level of 34 and a criminal history category of I, the Guideline range for
sentencing Bautista was 151 to 188 months. The district court stated that this was
a “significantly long sentence for a nonviolent drug offense.” It therefore
sentenced him to only ninety-seven months imprisonment.
On appeal, Bautista makes three arguments. We will consider them one at a
time.
I.
Bautista first argues that the district court erred when it found that he was
responsible for importing 40,000 ecstacy pills.
We review the district court’s factual determination of the drug quantity for
clear error. See United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005),
cert. denied, 125 S. Ct. 2935 (2005). Because Bautista has objected to the court’s
factual finding, the Government bears the burden of establishing the disputed fact
by a preponderance of the evidence. See id.
Where there is no drug seizure or the amount seized does not reflect the
scale of the offense, the district court must estimate the drug quantity. U.S.S.G. §
2D1.1 comment (n.12). The court may base its computation on evidence showing
the average frequency and amount of the defendant’s drug sales over a given
period of time. See Rodriguez, 398 F.3d at 1296. The sentence may be based on
4
“fair, accurate, and conservative estimates of the quantity of drugs attributable” to
the defendant. Id. When the case involves a conspiracy, the court may consider all
reasonably foreseeable acts and omissions of other persons in furtherance of the
criminal scheme in calculating the defendant’s base offense level. U.S.S.G. §
1B1.3(a)(1)(B).
Testimony at trial indicated that Bautista was directly involved in the receipt
of four suitcases that were never intercepted. Additionally, testimony indicated
that the scheme involved a fifth suitcase that was found to contain 40,000 tablets.
The courier from that trip testified that she could not remember who received that
suitcase. Notwithstanding that, Bautista may be held responsible for the
intercepted suitcase as a “reasonably foreseeable act” in furtherance of the
conspiracy. U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, we conclude that the district
court did not commit clear error when it attributed 40,000 tablets to Bautista.
II.
Bautista next argues that the district court committed constitutional error
when it determined that he was responsible for importing 40,000 ecstacy tablets.
Bautista argues that the district court made this finding in the absence of a jury
finding, an admission by him, or proof beyond a reasonable doubt of the drug
quantity.
5
As a preliminary matter, we note that Bautista has preserved his Booker
claim for appellate review. See United States v. Dowling, 403 F.3d 1242, 1246
(11th Cir. 2005), cert. denied, __ S. Ct. __ (2005). Before sentencing, he objected
to the PSI on the grounds that Blakely rendered the Sentencing Guidelines
unconstitutional. At sentencing, he raised a Booker objection to the district court’s
finding of the drug quantity attributable to him.
We review Bautista’s Booker claim de novo and reverse only if the error
was harmful. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We
stated in Rodriguez that constitutional Booker error is not the application of “extra-
verdict enhancements.” Rodriguez, 398 F.3d at 1300–01. The error occurs when
those enhancements are applied in a mandatory Guidelines system. Id.; see also
United States v. Duncan, 400 F.3d 1297, 1302 (11th Cir. 2005) (“Rodriguez
explain[ed] how we know that the same enhancements made in a non-mandatory
Guidelines system are constitutionally permissible, and thus how we know that the
error was the failure to treat the Guidelines as advisory.”), cert. denied, __ S. Ct. __
(2005).
The district court did not commit constitutional Booker error when it
sentenced Bautista based on a drug quantity not admitted by him or decided by a
jury beyond a reasonable doubt. During the sentencing hearing the court explained
6
that it could attribute 40,000 tablets to Bautista instead of one ecstasy tablet (the
lowest quantity for an offense involving ecstasy), because “the guidelines are no
longer mandatory.” This statement, and the fact that the final sentence was lower
than the Guideline range, make it clear that the court treated the Guidelines as
discretionary.
III.
Finally, Bautista argues that his sentence was not reasonable based on the
factors listed at 18 U.S.C. § 3553.
Once the district court accurately calculates the Guideline range, it may
impose a more severe or more lenient sentence. See United States v. Winingear,
422 F.3d 1241, 1244 (11th Cir. 2005). Following Booker, we review the district
court’s departure from the Guideline range for reasonableness. Id. We evaluate
whether the sentence was reasonable in light of the factors listed in 18 U.S.C. §
3553(a). These factors include: (1) the nature and circumstances of the offense; (2)
the history and characteristics of the defendant; (3) the need for the sentence
imposed to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment; (4) the need to protect the public; and (5) the
Guideline range. 18 U.S.C. §3553(a).
Applying the § 3553(a) factors to this case, we consider that Bautista was
7
intimately involved in the conspiracy to import ecstasy. He met couriers shortly
before their departure to the Dominican Republic. He was present when they
returned with their suitcases filled with ecstasy. In some cases, he even directly
received the suitcases. We also consider that the district court, in calculating his
Guideline range, attributed 40,000 ecstacy pills to him. This was the amount that
resulted from only one courier trip to the Dominican Republic. Furthermore,
although Bautista had no criminal history, we consider that his Guideline range
was 151 to 188 months imprisonment and the district court’s sentence of 97
months was 54 months below the lowest point of his Guideline range. For these
reasons, the district court’s sentence was more than reasonable. Bautista should
consider himself fortunate to have received that sentence.
AFFIRMED.
8