[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
------------------------------------------- FILED
No. 04-16332 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar September 16, 2005
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 04-00139-CR-WTM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DILLARD ROSS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(September 16, 2005)
Before EDMONDSON, Chief Judge, ANDERSON and CARNES, Circuit Judges.
PER CURIAM:
Dillard Ross appeals his 108-month sentence, pursuant to his guilty plea, for
distribution of 5 or more grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Ross argues that the district court violated Blakely v. Washington,
124 S.Ct. 2531 (2004), when it sentenced him based on a drug quantity that he did
not admit and that was not proved to a jury beyond a reasonable doubt. The
government concedes that error exists under United States v. Booker, 125 S.Ct.
738 (2005). We agree; we vacate Ross’s sentence and remand for resentencing
consistent with Booker.
Ross was indicted for two counts of distribution of 5 or more grams of crack
cocaine based on two transactions: the first, involving 46.4 grams, occurred on 7
January 2004 (Count One) and the second, involving 27.6 grams, occurred on 16
January 2004 (Count Two).1 Ross agreed to plead guilty to Count One. In the
plea agreement, the government agreed to dismiss Count Two, and Ross admitted
to distributing 46.4 grams of cocaine base on 7 January 2004. Ross made no
admission about Count Two.
The presentence investigation report (PSI) attributed to Ross a total drug
quantity of 74 grams of crack cocaine: 46.4 grams for the first transaction and 27.6
grams for the second transaction. The PSI assigned a base offense level of 32,
under U.S.S.G. § 2D1.1(c)(4), and a 3-level reduction for acceptance of
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Ross also was indicted for possession of a firearm by a convicted felon, but that count was
dismissed on the government’s motion and is not relevant to this appeal.
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responsibility, § 3E1.1(a), (b). Combined with a criminal history category of III,
the PSI assigned Ross a guideline sentencing range of 108 to 135 months’
imprisonment.
Based on Blakely and Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), Ross
objected to the PSI’s inclusion, in its drug weight calculation, of the sale of the
27.6 grams of crack cocaine listed in Count Two. He argued that he did not plead
guilty to Count Two, that he did not admit to this conduct, and that a jury did not
find him guilty of that charge. Ross asserted that he could be held accountable for
the 46.4 grams of crack cocaine in Count One. The district court overruled Ross’s
Blakely objection, but expressed hope “that sometime very soon the Supreme
Court of the United States will clarify the issue of the guidelines and their
constitutionality, but until such time as they change the law, it is the opinion of
this Court that the guidelines are still binding.” The district court then adopted the
PSI’s calculations and sentenced Ross to 108 months’ imprisonment.
In Booker, the Supreme Court held that Blakely applied to the Sentencing
Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.),
petition for cert. denied, No. 04-1148 (U.S. June 20, 2005). Under Booker, two
types of sentencing errors exist: “one is constitutional and the other is statutory.”
United States v. Dacus, 408 F.3d 686, 688 (11th Cir. 2005). “[T]he Sixth
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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.”
Rodriguez, 398 F.3d at 1298. The statutory error occurs when the district court
sentences a defendant “under a mandatory Guidelines scheme, even in the absence
of a Sixth Amendment enhancement violation.” United States v. Shelton, 400
F.3d 1325, 1330-31 (11th Cir. 2005).
Ross properly preserved his Blakely/Booker constitutional objection in the
district court. See United States v. Dowling, 403 F.3d 1242, 1245 (11th Cir.
2005). We review this issue de novo; but we will not reverse the district court if
the government shows that the error was harmless beyond a reasonable doubt. See
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
Ross’s sentence was enhanced, under a mandatory guidelines system, based
on facts found by the judge and not admitted by Ross: Booker indicates that
Ross’s Sixth Amendment right to trial by jury was violated. See United States v.
Davis, 407 F.3d 1269, 1270 (11th Cir. 2005). And the government concedes error:
the government thus does not attempt to show “that the mandatory, as opposed to
the advisory, application of the guidelines did not contribute to [Ross]’s sentence.”
Id. at 1271. The district court expressly treated the guidelines as mandatory: it
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made no statement indicating that it would have given the same sentence
regardless of whether the guidelines were advisory or mandatory. See id. (no
harmless error beyond a reasonable doubt where “[w]e simply do not know what
the sentencing court would have done had it understood the guidelines to be
advisory rather than mandatory, and had properly considered the factors in 18
U.S.C. § 3553(a)”). Ross must be resentenced under the advisory guidelines
system: on remand, the district court, “while not bound to apply the Guidelines,
must consult those guidelines and take them into account when sentencing.” Paz,
405 F.3d at 949 (quoting Booker, 125 S.Ct. at 767).
VACATED and REMANDED.
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