[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 28, 2005
No. 04-15854 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-60275-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT WOOLRIDGE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 28, 2005)
Before DUBINA, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Albert Woolridge, through counsel, appeals his 57-month
sentence for conspiracy to possess with the intent to distribute 3, 4-
methylenedioxy-methamphetamine hydrochloride (“MDMA” or “ecstacy”) and
gamma hydroxybutyric acid (“GHB”), pursuant to 21 U.S.C. §§ 846 and
841(b)(1)(C). Woolridge contends that the district court erred under United States
v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), because it
sentenced him based on a drug quantity not alleged in the indictment or admitted
by Woolridge. He argues that it is “irrelevant . . . that [he] might have
acknowledged a greater quantity of ecstasy and GHB, upon the court’s probing,
and after the prosecutor’s factual proffer, at his plea colloquy” because they were
not “stipulations” contemplated by Blakely v. Washington, 542 U.S. ___, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004), since they were not in writing. He argues that the
admission of the drug quantity was not voluntary because he did not know his
rights under Blakely at the time of the plea colloquy. He also argues that the
district court erred in sentencing him pursuant to a mandatory Guidelines system
and failing to “consider the many other listed factors” in 18 U.S.C. § 3553(a).
In Booker, the Supreme Court explicitly reaffirmed its rule first pronounced
in Apprendi that “[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.” Booker, 543 U.S. at ___, 125 S. Ct. at 756. The
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Supreme Court held that the Federal Sentencing Guidelines violate the Sixth
Amendment right to a jury trial to the extent that they permit a judge to increase a
defendant’s sentence based on facts that are neither found by a jury nor admitted
by the defendant. Id. at ___, 125 S. Ct. at 746-56.
In Booker, the Supreme Court also extended Blakely and held that the
mandatory nature of the Federal Sentencing Guidelines rendered them
incompatible with the Sixth Amendment’s guarantee to the right to a jury trial.
Booker, 543 U.S. at ___, 125 S. Ct. at 749-52. In a second and separate majority
opinion, the Court in Booker concluded that, to best preserve Congress’s intent in
enacting the Sentencing Reform Act of 1984, the appropriate remedy was to
“excise” two specific sections—18 U.S.C. § 3553(b)(1) (requiring a sentence
within the guideline range, absent a departure) and 18 U.S.C. § 3742(e)
(establishing standards of review on appeal, including de novo review of
departures from the applicable guideline range)—thereby effectively rendering the
Sentencing Guidelines advisory only. Id. at ___, 125 S. Ct. at 764. The Supreme
Court noted, however, that courts must continue to consult the Guidelines, together
with the factors listed in 18 U.S.C. § 3553(a).1 Id.
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These factors include, inter alia, the nature and circumstances of the offense, the history
and characteristics of the defendant, the need for adequate deterrence, protection of the public, the
pertinent Sentencing Commission policy statements, and the need to avoid unwarranted sentencing
disparities. See 18 U.S.C. § 3553(a).
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We have explained that there are two types of Booker error: (1) Sixth
Amendment error based upon sentencing enhancements neither admitted by the
defendant nor submitted to a jury and proven beyond a reasonable doubt; and
(2) error based upon sentencing under a mandatory Guidelines system. United
States v. Shelton, 400 F.3d 1325, 1329-31 (11th Cir. 2005). There is no Sixth
Amendment error under Booker where the defendant has admitted to facts later
used by the district court to enhance a sentence. Id. at 1330. Even in the absence
of a Sixth Amendment violation, however, Booker error exists where the district
court imposes a sentence under a mandatory Guidelines system. Id. at 1330-31;
see also United States v. Rodriguez, 398 F.3d 1291, 1300-01 (11th Cir.) (holding
that error under Booker is not the application of extra-verdict enhancements but,
rather, the application of such enhancements under a mandatory Guidelines
system), cert. denied, ___ S. Ct. ___ (June 20, 2005).
The Sentence Based on Drug Quantity
Where a constitutional claim under Booker was preserved in the district
court, as here, we review the case de novo but will reverse and remand only for
harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). “To find
harmless error, we must determine that the error did not affect the substantial rights
of the parties.” Id. (quotation omitted); see also Fed. R. Crim. P. 52(a) (providing
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that “[a]ny error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded”). Furthermore,
[a] constitutional error, such as a Booker error, must be disregarded as
not affecting substantial rights, if the error is harmless beyond a
reasonable doubt. This standard is only met where it is clear beyond a
reasonable doubt that the error complained of did not contribute to the
sentence obtained. The burden is on the government to show that the
error did not affect the defendant’s substantial rights.
Paz, 405 F.3d at 948 (quotations, alterations, and citations omitted).
In the instant case, Woolridge’s claim that he did not properly admit to the
drug quantity at his plea colloquy because it was not in writing or voluntary is
without merit. The record demonstrates that Woolridge admitted to the drug
quantity at his plea colloquy and failed to object to the facts contained in the
presentence investigation report (“PSI”), and, thus, we conclude that his sentence
complies with Booker. See Shelton, 400 F.3d at 1330 (holding under plain-error
review that the district court did not err under the Sixth Amendment because the
defendant admitted to the relevant drug-quantity facts at both his plea and
sentencing hearings, and did not object to the factual accuracy of the PSI). In
addition, there is no requirement that the admission has to be in writing. See id.
We also reject Woolridge’s argument that his admissions as to drug quantity at his
plea hearing were not voluntary because he did not understand his rights under
Booker.
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The District Court’s Treatment of the Guidelines as Mandatory
Woolridge’s preserved challenge under Blakely and Booker also preserved
his claim on appeal under Booker regarding the advisory nature of the Guidelines.
See United States v. Dowling, 403 F.3d 1242, 1244-46 (11th Cir. 2005) (addressing
a claim that the sentencing court erred in applying “the Federal Sentencing
Guidelines as mandatory” and noting that the claim would be preserved with a
“citation to Apprendi or to other cases in that line of cases”). We recently
determined that
[t]here are two harmless error standards. One of them applies to
Booker constitutional errors, the other to Booker statutory errors. . . .
Booker statutory errors . . . are subject to [a] less demanding test that
is applicable to non-constitutional errors. 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 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, (11th Cir. 2005) (citations, quotations,
and alterations omitted). We have stated that a Booker error is harmless when the
district court pronounces an alternate sentence depending on whether the
Sentencing Guidelines became invalid and that sentence is the same. United States
v. Petho, 409 F.3d 1277, (11th Cir. 2005).
In the instant case, we conclude that the district court committed error in
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applying the Guidelines as mandatory. See Booker, 543 U.S. ___, 125 S. Ct. at
749-52. However, the district court indicated that it would have imposed an
identical sentence if the Guidelines became invalid. Accordingly, the government
has met its burden of showing that the error in sentencing Woolridge under a
mandatory Guideline scheme was harmless. See Petho, 409 F.3d at 1277.
Accordingly, we affirm Woolridge’s sentence.
AFFIRMED.
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