[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 23, 2005
No. 04-15903
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00076-CR-4-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRENT DUDLEY JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 23, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Brent Dudley Jones appeals his concurrent 41-month sentences, imposed
after he pled guilty to charges of conspiracy to commit bank fraud and bank fraud,
in violation of 18 U.S.C. §§ 1344 and 371 and 2, based on his involvement in a
counterfeit check ring. On appeal, Jones argues that the district court erred by
calculating his sentence based on a loss amount that was greater than the amount of
the checks in the counts to which he pled guilty, and that was not admitted by him
or submitted to a jury, in violation of Blakely v. Washington, 542 U.S. ___, 124
S.Ct. 2531 (2004). Jones also contends that the district court erred by enhancing
his sentence based on his supervisory role in the offense, and that it was error for
the district court not to review his role in relation to that of the other participants.
I. Constitutional Claim
In the instant case, Jones objected to the Presentence Investigation Report
(“PSI”), and at sentencing, regarding the enhancement of his sentence based on
judicially-determined facts, and accordingly, preserved this issue for appeal.
Therefore, we review his sentence de novo, reversing only for harmful error.
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). “[C]onstitutional errors
are 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, ___ F.3d ___ No. 04-15250 (11th Cir. May 23, 2005) (citing Paz, 405
F.3d at 948-49).
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63,
(2000), the Supreme Court held that, “[o]ther than the fact of a prior conviction,
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any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
The Supreme Court also held, in Blakely, that the imposition—based solely on the
sentencing judge’s factual findings—of a sentencing enhancement above the 53-
month standard range indicated in the State of Washington’s Sentencing Reform
Act violated the defendant’s Sixth Amendment rights because the facts supporting
the findings neither were admitted by the defendant, nor found by a jury. See
Blakely, 542 U.S. at ___, 124 S.Ct. at 2534-38. The Court in Blakely, however,
expressly stated that “[t]he Federal Guidelines are not before us, and we express no
opinion on them.” Blakely, 542 U.S. at ___, 124 S.Ct. at 2538 n.9.
The Supreme Court, in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738
(2005), through Justice Steven’s majority opinion, ultimately found “no distinction
of constitutional significance between the Federal Sentencing Guidelines and the
Washington procedures at issue [in Blakely].” Booker, 543 U.S. at ___, 125 S.Ct.
at 749. Therefore, the Court concluded that the mandatory nature of the guidelines
rendered them incompatible with the Sixth Amendment’s guarantee to the right to
a jury trial. Id., 543 U.S. at ___, 125 S.Ct. at 749-51. The Court also explicitly
reaffirmed its rationale in Apprendi that “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by the
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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.” Id., 543 U.S. at ___,
125 S.Ct. at 756. In United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.
2005), petition for cert. filed, (U.S. Feb. 23, 2005) (No. 04-1148) (emphasis in
original), we stated that, under the holding in Booker, “the 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.”
Because Jones’s sentence was enhanced, under a mandatory guidelines
system, based on facts found by the judge and not admitted by Jones, the district
court committed constitutional error. Because it is not clear beyond a reasonable
doubt that this error was harmless, Jones’s sentence is vacated and remanded for
resentencing in light of Booker under the advisory guidelines system
II. Role Enhancement
We recently stated that a district court’s obligation under Booker to consult
the guidelines, “at a minimum, obliges [it] to calculate correctly the sentencing
range prescribed by the Guidelines.” United States v. Crawford, 407 F.3d 1174,
1178 (11th Cir. 2005). We further stated that a district court’s misinterpretation of
the Sentencing Guidelines “effectively means that the district court has not
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properly consulted the Guidelines.” Id. at 1179 (internal quotations and citation
omitted). Because, under Booker, the district court still must consider the proper
application of the Sentencing Guidelines, we will address Jones’s challenge to the
§ 3B1.1(b) enhancement. See id.
We review for clear error a district court’s determination of a defendant’s
role in the offense. United States v. DeVaron, 175 F.3d 930, 937 (11th Cir.) (en
banc). Section 3B1.1(b) provides for a three-level enhancement if a “defendant
was a manager or supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise extensive.” U.S.S.G.
§ 3B1.1(b). “The government bears the burden of proving by a preponderance of
the evidence that the defendant had an aggravating role in the offense.” United
States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003). In determining the nature
of the defendant's role, the court may consider “the exercise of decision making
authority, the nature of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of control and authority exercised
over others.” U.S.S.G. § 3B1.1, comment. (n.4).
Upon careful review of the record, and consideration of the parties’ briefs,
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we vacate and remand for resentencing. We note, on remand, however, that the
district court did not err factually by applying a three-level enhancement based on
Jones’s role as a manager of the scheme.
VACATED AND REMANDED.
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