[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________________U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 13, 2006
No. 04-12918
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00009 CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY BERTUCCI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 13, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and FAY, Circuit Judges.
PER CURIAM:
Anthony Bertucci (“Defendant”) was convicted of conspiracy to possess
with intent to distribute 100 kg or less of marijuana. Defendant attacks his
conviction on two grounds. First, Defendant argues the district court erred by
denying his motion to suppress evidence seized from his residence. Because this
evidence was obtained pursuant to a search warrant supported by recent evidence
of trash pulls and an indictment that corroborated older information that Defendant
was distributing drugs from his house, the evidence was properly admitted.
Second, Defendant argues he is entitled to a new trial, because the evidence at trial
established multiple conspiracies, not the single conspiracy indicted. Assuming
that the evidence did establish multiple conspiracies, Defendant would still not be
entitled to reversal of his conviction, because he has not shown substantial
prejudice. See U.S. v. Coy, 19 F.3d 629, 633 (11th Cir. 1994). Third, Defendant
challenges his sentence, arguing the district court committed reversible
constitutional error under United States v. Booker, 125 S.Ct. 738 (2005). The
government concedes this error. And we accept that there is harmful error. We
affirm Defendant’s conviction, but vacate the sentence and remand for
resentencing.
AFFIRMED in part, VACATED in part, and REMANDED.
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