[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 04-16376 ELEVENTH CIRCUIT
MARCH 20, 2006
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 02-00586-CR-BBM-1-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JAIMES CAMBRAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(March 20, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Defendant-Appellant Jose Jaimes Cambray appeals his 228-month sentence
imposed after he pleaded guilty to one count charging a drug trafficking
conspiracy, three counts charging substantive drug trafficking offenses, and one
count charging possession of a firearm in furtherance of a drug trafficking crime.
Defendant contends the district court committed Booker error, United States v.
Booker, 125 S.Ct. 738 (2005),1 when it calculated his sentence based on drug
quantities greater than the quantities charged in the indictment and to which
Defendant pleaded guilty. Defendant’s constitutional claims were raised timely in
the district court and, as such, are preserved for our review. We vacate and
remand for resentencing.
Defendant argued at sentencing and argues again on appeal that, consistent
with his constitutional rights, he may be sentenced based on drug quantities no
greater than those charged in the indictment to which he pleaded guilty.
According to Defendant, because the drugs associated with the substantive counts
in the indictment totaled 1,000 grams of methamphetamine and 500 grams of
cocaine, Defendant’s offense level under the guidelines, before credit for
1
Booker was decided by the Supreme Court after Defendant was sentenced. At sentencing,
Defendant raised his constitutional claims based on Blakely v. Washington, 124 S.Ct. 2531 (2004).
Because the Booker decision applies to all cases on direct review, we apply Booker to this appeal.
Booker, 125 S.Ct. at 769.
2
acceptance of responsibility, was level 32. Based on this level 32 calculation,
Defendant’s criminal history category of I, and application of a three- point credit
for acceptance of responsibility, Defendant’s guidelines sentence was less than the
10-year mandatory minimum. Defendant contends his sentence can be no greater
than the 10-year mandatory minimum plus the consecutive five-year sentence for
the weapons offense.
Instead, the district court held Defendant accountable for drug quantities
stated in the PSI and calculated sentence based on almost 16,000 grams of
methamphetamine and almost 1600 grams of cocaine. Over the government’s
objection, the district court gave Defendant a three-point reduction for acceptance
of responsibility. Based on this drug quantity, Defendant’s acceptance of
responsibility, and a criminal history category of I, Defendant’s guideline range
was 168 to 210 months, plus the consecutive five-year sentence for the weapons
offense. Defendant was sentenced to 168 months imprisonment for the drug
offenses, to be followed by 60 months, for a total of 228 months imprisonment.
We see no merit in Defendant’s constitutional claims. Although Defendant
argues to the contrary, Defendant admitted to the additional drug amounts during
the plea colloquy. Before Defendant’s guilty plea was accepted by the court, the
government stated that the evidence at trial would show that at least 500 grams of
3
cocaine and 39 pounds of methamphetamine was recovered from Defendant’s
apartment,2 and additional methamphetamine (approximately one pound or .454
kg) was seized as a result of the LaBarca transaction. Although the district court
did not question Defendant about the exact drug amounts in the government’s
factual proffer, the Defendant did admit expressly his responsibility for these
drugs. And, even at sentencing, Defendant made no objection to the drug
quantities set out in the PSI on factual grounds; he objected on constitutional
grounds to an enhancement for quantities beyond those charged in the indictment.
When a defendant admits to the facts that enhanced his sentence, no Sixth
Amendment violation under Booker can be shown. Booker, 125 S.Ct. at 756
(reaffirming that facts used to enhance a sentence, other than a prior conviction,
must be proved to a jury beyond a reasonable doubt or admitted by the defendant);
see United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). And, a
defendant’s failure to dispute drug-quantity facts contained in the PSI operates as
an admission of those facts for Booker purposes. See id.
Although we conclude that the sentencing court committed no constitutional
Booker error, two kinds of sentencing error may be claimed under Booker:
2
Laboratory reports show that the actual amount of methamphetamine seized from Defendant’s
apartment was 33.869 pounds, not 39 pounds. The PSI calculated Defendant’s sentence based on
the actual amounts set out in the laboratory reports.
4
constitutional and statutory. See, e.g., United States v.Mathenia, 409 F.3d 1289,
1291 (11th Cir. 2005). “[C]onstitutional error is the use of extra-verdict
enhancements to reach a guidelines result that is binding on the sentencing judge.”
Shelton, 400 F.3d at 1331 (quoting United States v. Rodriguez, 398 F.3d 1291,
1301 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005)). Statutory Booker error
occurs when the district court misapplies the guidelines by considering them as
binding “even in the absence of a Sixth Amendment enhancement violation.”
Shelton, 400 F.3d at 1330-31. Because the district court sentenced Defendant
under a mandatory guidelines system, statutory Booker error has been shown.
We apply preserved error review to a statutory Booker claim if defendant
preserved a constitutional claim by “citation to Apprendi or to other cases in that
line of cases.” United States v. Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005).3
Statutory Booker error requires reversal “only if [the error] resulted in actual
prejudice because it had substantial and injurious effect or influence in
determining the [result ].” United States v. Gallegos-Aguero, 409 F.3d 1274, 1277
(11th Cir. 2005) (quoting United States. v. Guzman, 167 F.3d 1350, 1353 (11th Cir.
1999)). The government bears the burden to show the absence of effect of the
3
We apply preserved error review when considering both constitutional and statutory Booker error
when, as here, the defendant made a constitutional Booker objection in the district court and his
initial appellate brief was filed before our decision in Shelton.
5
statutory error on the defendant’s substantial rights. Mathenia, 409 F.3d at 1292.
A sentence is due to be affirmed if it can be said “‘with fair assurance ... that the
[sentence] was not substantially swayed by the error.’” Id. (quoting United States
v. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir. 2004).
From our review of the record we can not say with fair assurance that
Defendant’s sentence was not substantially impacted on by the statutory Booker
error. What sentence the district court would have imposed had it considered the
guidelines advisory and had properly considered the factors in 18 U.S.C. § 3553(a)
is unknown and unknowable. The government failed to carry its burden of
showing that the error was harmless. Accordingly, we vacate Defendant’s
sentence and remand for resentencing consistent with Booker.
VACATED and REMANDED.
6