[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 1, 2005
No. 05-10364 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00072-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO BUITRON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(September 1, 2005)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Ricardo Buitron appeals his 21-month sentence for possession with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1). In the district court,
Buitron objected, based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004), to the drug quantity calculation used in sentencing him. On appeal,
Buitron raises issues pursuant to United States v. Booker, 543 U.S. ___, 125 S. Ct.
738 (2005). After de novo review, we vacate Buitron’s sentence and remand for
resentencing.
I. BACKGROUND
A. Plea Colloquy
Buitron entered into a written plea agreement in which he pled guilty to
possession with intent to distribute 32 pounds of marijuana. Attached to the plea
agreement was a factual resume in which Buitron admitted that on April 9, 2004,
he knowingly possessed with intent to distribute 32 pounds of marijuana during a
reverse-sting transaction. Thirty-two pounds of marijuana equals 14.5 kilograms.
Buitron also admitted that he previously had purchased marijuana from co-
defendant Gilberto Ledesma. For the purposes of Buitron’s plea, the government
and Buitron did not reach an agreement regarding the exact amount of marijuana
involved in the previous transactions with Ledesma.
B. PSI and Sentencing
2
The Presentence Investigation Report (“PSI”) recommended a base offense
level of 18, based on a drug quantity of 28.12 kilograms of marijuana, which
equals 61.99 pounds. This amount included the 32 pounds (or 14.9 kilograms)
admitted to in the plea agreement. The additional 29.99 pounds of marijuana
above what Buitron admitted to in his plea agreement was based on the previous
transactions where Buitron purchased marijuana from co-defendant Ledesma. The
PSI also recommended a three-level reduction for acceptance of responsibility,
pursuant to U.S.S.G. § 3E1.1. With a total offense level of 15 and a criminal
history category of II, Buitron’s Guidelines range was 21-27 months’
imprisonment.
Buitron objected to the PSI, arguing that his co-defendant Ledesma had
made conflicting statements to investigators regarding the amount of marijuana
that Ledesma had sold to Buitron, and that therefore, the information obtained from
Ledesma could not be used in determining Buitron’s relevant conduct. Buitron
also asserted that the government must prove beyond a reasonable doubt the
amount of marijuana purchased from Ledesma, pursuant to Blakely.
During the sentencing hearing, Buitron renewed his objection to the drug-
quantity calculation, arguing that, even under “the pre-Blakely standard,”
Ledesma’s statements were not “reliable hearsay.” Buitron maintained that, at
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most, he should be held accountable for 40 pounds of marijuana, based on the 30
pounds he possessed at the time of his arrest and 10 additional pounds that “would
come in through his testimony.”1
The government then called Baldwin County Sheriff Deputy Paul Johnson to
testify regarding drug quantity. Johnson testified that after Ledesma agreed to
cooperate with the government, Ledesma arranged the reverse-sting operation,
involving approximately 32 pounds of marijuana, which resulted in Buitron’s
arrest. Deputy Johnson also testified that during an interview, Ledesma stated that
he had sold 38 pounds of marijuana to Buitron during three prior transactions in
2003.
Buitron testified that he did not purchase any marijuana from Ledesma in
2003. Instead, he claimed that he sold Ledesma a truck in 2003 in exchange for 10
pounds of marijuana, which he never received.2 Buitron also admitted that he
received 10 pounds of marijuana from Ledesma in 2002. Further, on cross-
examination, Buitron admitted that he purchased 10 pounds of marijuana from
Ledesma in 2001. Thus, in total, Buitron admitted to purchasing 52 pounds, or
23.5872 kilograms, of marijuana from Ledesma – that is 32 pounds from the
1
Forty pounds equals 18.144 kilograms of marijuana.
2
Buitron contended that 10 of the 32 pounds of marijuana from the reverse-sting operation
were to compensate him for the earlier deal involving the truck.
4
reverse-sting operation, 10 pounds in 2002, and 10 pounds in 2001.3
The district court determined that Buitron’s base offense level was 18, which
corresponds to a drug quantity between 20 and 40 kilograms of marijuana. The
district court then adopted the PSI’s Guidelines calculations. Buitron’s attorney
asked that the district court sentence Buitron to probation. The government asked
that the defendant be sentenced at the low end of the Guidelines range. The district
court adopted the government’s recommendation and sentenced Buitron to 21
months’ imprisonment, which was the low end of the Guidelines range. In doing
so, the district court noted:
Whether Blakely applies in this case or not, we don’t know yet.
Perhaps it does. If it does, there may be some later adjustment for
those figures. I don’t know. But based on the standards that I have to
apply at this time, I find that Mr. Buitron possessed with intent to
distribute in excess of 44 pounds, or 20 grams (sic), placing him in a
range of – a Base Offense Level of 18.
The district court then stated that Buitron’s attorney “ha[d] made a strong
plea for something less than what [this Court is] obligated under the law to give
[Buitron].” The district court further stated that “[f]or the reasons I’ve already set
forth, though, that plea is not convincing.” Further, the district court also
concluded that based on the findings it had made, “the punishment in this case []
demands that [Buitron] be incarcerated and that the low end of that incarceration is
3
Fifty-two pounds equals 23.5872 kilograms of marijuana.
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21 months.” Thus, while the record indicates that the district court clearly rejected
probation in favor of incarceration, there is some indication the district court may
have considered a different amount of incarceration if Blakely applied to the
Guidelines.
II. DISCUSSION
On appeal, Buitron argues that the district court violated his Sixth
Amendment rights by sentencing him based upon a drug quantity that he did not
admit and by sentencing him under a mandatory Guidelines scheme.
Because Buitron timely raised a Blakely objection in the district court, we
review his Blakely, now Booker, claim de novo. United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005) (citation omitted).
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.), cert.
denied, 125 S. Ct. 2935 (2005). “Under Booker, there are two kinds of sentencing
errors: one is constitutional and the other is statutory.” United States v. Dacus, 408
F.3d 686, 688 (11th Cir. 2005). “[T]he 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.” Rodriguez, 398 F.3d at 1298
6
(emphasis omitted). 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).
In this case, we conclude that the district court did not violate Buitron’s
Sixth Amendment rights. In the factual resume attached to his plea agreement,
Buitron admitted that he possessed 32 pounds of marijuana in relation to the
reverse-sting operation. Further, he admitted during the sentencing hearing that he
purchased an additional 10 pounds of marijuana from Ledesma in 2001 and
another 10 pounds of marijuana in 2002. Thus, Buitron admitted to a drug quantity
of 52 pounds of marijuana, which equals 23.5872 kilograms. The district court set
Buitron’s base offense level at 18, which corresponds to a drug quantity of 20 to 40
kilograms of marijuana.
Although there is no Sixth Amendment violation in this case, the district
court committed statutory Booker error in sentencing Buitron under a mandatory
Guidelines regime. Thus, we must determine whether the statutory error in
Buitron’s sentencing is harmless. See Paz, 405 F.3d at 948.
“A non-constitutional error is harmless if, viewing the proceedings in their
entirety, a court determines that the error did not affect the sentence, or had but
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very slight effect. If one can say with fair assurance that the sentence was not
substantially swayed by the error, the sentence is due to be affirmed even though
there was error.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005)
(internal quotation marks, brackets, ellipses, and citation omitted). The burden is
on the government to show that the error was harmless and the standard “is not
easy for the government to meet.” Id.
We conclude that the government has failed to meet its burden as to
Buitron’s sentence. As noted earlier, the district court indicated that if Blakely
applied, the district court may later need to adjust the sentencing figures. We do
know that the district court would have rejected probation and imposed some
incarceration. However, as to the length of incarceration, “[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).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005).
If anything, the record indicates that the district court may have considered a
different sentence. We do not mean to suggest by our holding that the district
court must impose any particular sentence on remand. Rather, we merely hold that
the government did not meet its burden of showing that the Booker statutory error
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was harmless on the current record before this Court.4
Accordingly, we vacate Buitron’s sentence and remand his case to the
district court for resentencing. We note that the district court correctly calculated
Buitron’s Guidelines range. 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 requirement, at a minimum, obliges the district
court to calculate correctly the sentencing range prescribed by the Guidelines”).
Thus, on remand, the district court is required to sentence Buitron under an
advisory Guidelines regime, and shall consider the Guidelines range of 21-27
months’ imprisonment and “other statutory concerns as well, see [18 U.S.C.] §
3553(a) (Supp. 2004).” Booker, 125 S. Ct. at 757.5
VACATED AND REMANDED.
4
We also do not attempt to decide now whether a particular sentence might be reasonable in
this case.
5
We reject Buitron’s claim that notice of relevant conduct in an indictment is required.
Nothing in Booker requires that relevant conduct under an advisory Guidelines regime be included
in the indictment. In any event, Buitron had notice that his 2001 conduct could be considered. The
factual resume attached to the plea agreement stated that for purposes of relevant conduct, the
parties did not reach an agreement regarding the amount of marijuana involved in Buitron’s prior
transactions with Ledesma. Thus, Buitron did have notice that the government would seek to
attribute drug amounts to him beyond the drug amount stipulated to in relation to the reverse-sting
operation.
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