[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16433 July 13, 2005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 04-00067-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES C. CARROLL,
a.k.a. Chase Carroll,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 13, 2005)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Charles C. Carroll appeals his sentence of 24 months’ imprisonment
imposed after Carroll was convicted by a jury of conspiracy to possess
methamphetamine and attempting to possess methamphetamine and MDMA or
ecstacy. Carroll argues that the district court violated his Sixth Amendment right
to trial by jury because it departed upward from the Guideline range based on a
finding thgoat Carroll had distributed the drugs. We affirm.
I. BACKGROUND
In a superseding indictment, Carroll was charged with Conspiracy to
Distribute and Possess With Intent to Distribute Methamphetamine, in violation of
21 U.S.C. section 841(a), (b)(1)(viii), and 846, and Possession With Intent to
Distribute Methamphetamine and MDMA or Ecstacy, in violation of 21 U.S.C.
sections 841(a), (b)(1)(B)(viii), 841(b)(1)(C), and 846. After a jury trial, Carroll
was convicted, not of the charges in the indictment but, of the lesser included
offenses of conspiracy to possess methamphetamine and attempting to possess
methamphetamine and MDMA or ecstacy.
The district court found that, although the jury had not convicted Carroll of
the charge of intent to distribute the drugs, Carroll had shared or distributed the
drugs. The district court, therefore, departed upward and sentenced Carroll to an
additional six months’ imprisonment on each conviction. Carroll objected to the
enhancement, because the fact of distribution had not been found by the jury. The
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district court noted the objection and stated, that in the event the Guidelines were
invalidated, the sentence would be the same. The district court also expressly
found that the term of imprisonment was sufficient punishment for the crime.
II. STANDARD OF REVIEW
Carroll made a timely objection to the sentence enhancement in the district
court. We review the sentence, therefore, de novo. United States v. Sanchez, 269
F.3d 1250, 1272 (11th Cir. 2002) (en banc). We will reverse the district court only
if any error was harmful. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
III. DISCUSSION
The district court enhanced Carroll’s sentence based on facts not found by
the jury when it departed upward based on a finding of distribution of drugs.
Under United States v. Booker, 125 S. Ct. 738 (2005), a defendant’s “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.”
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005) (citing Booker,
125 S. Ct. at 749-56). Carroll’s Sixth Amendment right to trial by jury was,
therefore, violated, but we must disregard this error if it was harmless. Paz, 405
F.3d at 948.
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A constitutional error, such as the error in this case, is “harmless where the
government can show, beyond a reasonable doubt, that the error did not contribute
to the defendant’s ultimate sentence.” United States v. Mathenia, No. 04-15250,
slip. op. at 5 (11th Cir. May 23, 2005). The government can meet its burden in this
case. The district court stated that it would impose the same sentence if the
Guidelines were invalidated. The error in sentencing, therefore, was harmless
beyond a reasonable doubt. Likewise, because the standard for harmless error for
non-constitutional errors is less demanding, the statutory error of the district court
in sentencing Carroll under a mandatory guidelines system is also harmless.
Carroll also argues that the district court was precluded from considering
distribution of drugs as a sentence enhancement because he was acquitted of that
conduct. We have already rejected this argument. United States v. Duncan, 400
F.3d 1297, 1304-05 (11th Cir. 2005).
IV. CONCLUSION
Because the error of the district court in enhancing Carroll’s sentence under
a mandatory guidelines system was harmless beyond a reasonable doubt, and the
district court did not err in considering distribution of the drugs as a sentencing
factor, we
AFFIRM.
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