[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-13598 ELEVENTH CIRCUIT
MAY 10, 2005
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00031-CR-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REMYS ROBLES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 10, 2005)
Before BLACK, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Remys Robles pled guilty to possession with intent to distribute cocaine. At
sentencing, he disputed the quantity of drugs attributed to him in the pre-sentence
investigation report. The district court found the disputed quantity was properly
attributed to Robles. By including the controverted quantity in its sentencing
guideline calculation, the court was able to and did impose a higher sentence than
it otherwise could have imposed given the facts admitted by Robles. The court,
first, sentenced Robles to 24 months’ imprisonment under a mandatory guidelines
scheme. Next, the court stated an alternative sentence of 24 months, treating the
guidelines as only advisory.
In light of United States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005),
Robles now contends we should vacate his sentence because the district court
erred and that error was not harmless. While the district court did err when it
imposed a sentence under a mandatory guidelines scheme, the Government has
met its burden of showing the error was harmless beyond a reasonable doubt and
we, therefore, affirm the defendant’s sentence.
I. BACKGROUND
On April 27, 2004, Remys Robles pled guilty to possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and possession
of a firearm during and in relation to a drug trafficking crime, in violation of 18
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U.S.C. § 924(c)(1). Robles received a sentence of 84 months’ imprisonment: 60
months on the firearm possession count (the statutory minimum) and 24 months on
the cocaine distribution count. Robles appeals only the latter.
In May 2003, the Fort Walton Beach, Florida Police Department received
information from a confidential informant that Robles was selling cocaine and
other drugs from his house at 127 Rainbow Drive, Fort Walton Beach, Florida.
Two trash sweeps yielded several plastic baggies and drinking straws containing a
white powdery residue, which tested positive for cocaine. Robles’ trash also
contained a digital scale and a number of plastic baggies with the corners cut off;
the corners are commonly used to package narcotics. Police surveillance of his
house observed a high volume of short-term traffic, another indicator of drug
trafficking activity.
On June 30, 2003, police executed a search warrant at Robles’ house. When
police entered the residence, Robles and another individual named Pablo Sanchez
were present; both men were handcuffed and advised of their Miranda rights. In
response to questioning by the officers, Robles admitted he had marijuana in his
bedroom for personal use, but denied possessing any cocaine or having engaged in
drug dealing of any kind. Sanchez stated he had just flown in from Puerto Rico
and was unaware of what was happening at Robles’ house.
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A search of Sanchez’s luggage revealed a Federal Express (FedEx) box
addressed to “Katherine Walker.” The box was shipped from Puerto Rico to 127
Rainbow Drive, Fort Walton Beach, Florida and was delivered on June 20, 2003.
Inside the FedEx box, police discovered several packages containing cocaine,
some of which were hidden inside videotape cassettes. In Robles’ bedroom, the
police found marijuana and ammunition for a 9mm handgun. When asked if he
owned a gun, Robles indicated he did and it was in his car. A search of the car
produced a 9mm semi-automatic pistol, cocaine, ecstasy, and Hydrocodone
tablets. The marijuana equivalency weight of all drugs found was 52.12
kilograms.
The pre-sentence investigation report recommended attributing the entire
52.12 kilograms to Robles because the cocaine found in Sanchez’s luggage should
be considered relevant conduct under the guidelines. The 52.12 kilograms,
combined with Robles criminal history category of I, resulted in a base offense
level of 20. He received a 3 level reduction for acceptance of responsibility,
leaving him with an offense level of 17 and a sentencing guideline range of 24 to
30 months.
Robles objected to the drug weight attributed to him; he contended he
should not be held accountable for the quantity of drugs found in the FedEx box
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located in Sanchez’s luggage. Taking into consideration only the drugs Robles
admitted possessing – the marijuana equivalency weight of which was 15.34
kilograms – his base offense level would have started at 16 and been reduced to
13. The guideline range for an offense level of 13 is 12 to 18 months.
In response to Robles’ objection, the Government pointed to the evidence
indicating that drug dealing was occurring at Robles’ house and that the conduct
in question – possession of cocaine – had the same common purpose (drug
distribution) as the crime Robles admitted committing. Robles offered no
explanation as to who “Katherine Walker” was or as to why the package
containing cocaine was sent from Puerto Rico to his address. The district court
found the cocaine in the FedEx box should be considered relevant conduct, having
been persuaded by the fact that the box was not addressed to Sanchez but to an
unknown person and was delivered to Robles’ house.1
At sentencing, Robles argued that Blakely v. Washington, 542 U.S. __, 124
S. Ct. 2531 (2004), rendered the federal sentencing guidelines unconstitutional.
1
Robles failed to challenge the district court’s conclusion that the cocaine in the FedEx
box was relevant conduct in his initial brief to this Court, raising it for the first time in his
supplemental brief. Issues not raised in a party’s initial brief will be deemed waived. See United
States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000).
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The district court rejected Robles’ Blakely challenge,2 but due to the uncertainty
surrounding the continued viability of the guidelines, the Government requested
that the court enter an alternative sentence. The court stated it would impose the
same sentence whether the guidelines were mandatory or not, concluding:
[I]f the guidelines turned out to be what I think they should be in the
first place, and that’s guidelines, I do find that after all of these years
of tinkering and study by the guideline commission, that there’s a
certain range to them that make the application of the principals [sic]
of the guidelines not quite legitimate. And my sentence would be the
same regardless of whether Blakely has invalidated the guidelines or
not, because I would apply them as guidelines and reach the same
conclusion that I will here today.
After the defendant spoke and urged the court to be lenient, in part because of his
age, the court imposed a sentence of 24-months and stated, “I do find this sentence
meets the goals of punishment and hopefully deters anyone else who might
consider similar criminal conduct.”
II. STANDARD OF REVIEW
Robles objected to the district court’s use of the guidelines at his sentencing
hearing and thereby preserved the issue for appeal. We review his claim of error
2
Robles was sentenced before this Court held in United States v. Reese, 382 F.3d 1308
(11th Cir. 2004), vacated by 125 S. Ct. 1089 (2005), that Blakely did not apply to the federal
guidelines.
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de novo and will reverse unless any error was harmless. United States v. Sanchez,
269 F.3d 1250, 1271 (11th Cir. 2001) (en banc).
III. DISCUSSION
A defendant’s Sixth Amendment right to a jury trial 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). Here, there is no dispute Robles’ Sixth Amendment right
was violated and his sentence was in error: he denied having anything to do with
the cocaine in the FedEx box, and the court relied upon that cocaine to impose a
higher sentence than Robles otherwise could have received. Nor is there a dispute
that Robles made a timely objection to the court’s erroneous use of the guidelines.
The only question before us is whether the error was harmless. An error is
harmless if it does not affect the substantial rights of the defendant. Fed. R. Crim.
P. 52(a). When the error is of the constitutional variety, a higher standard is
applied and it must be “clear beyond a reasonable doubt that the error complained
of did not contribute to the sentence obtained.” United States v. Paz, __ F.3d __,
__ (11th Cir. 2005) (No. 04-14829) (quoting United States v. Candelario, 240
F.3d 1300, 1307 (11th Cir. 2001)) (citations, brackets, and internal quotations
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omitted). The burden to prove the error was harmless beyond a reasonable doubt
rests squarely on the government. See United States v. Olano, 507 U.S. 725, 741,
113 S. Ct. 1770, 1781 (1993).
In most pre-Booker sentencing cases, our review for harmless error will give
rise to the same issue presented when we review for plain error: we simply do not
know what sentence the district court would have imposed absent the error. See
Rodriguez, 398 F.3d at 1301. Because we often do not know, the party bearing the
burden faces a difficult challenge. Appellate courts, however, sometimes do have
an idea of what the district court would have done. See, e.g., United States v.
Shelton, 400 F.3d 1325, 1332 (11th Cir. 2005) (vacating sentence for plain error
where clear evidence existed that the district court would impose a different
sentence on remand); United States v. Riccardi, __ F.3d __, __ (10th Cir. 2005)
(No. 03-3132) (finding constitutional Booker-error harmless in part because the
district court sentenced at the top of the guidelines). This is such a case.
The Government has a high burden to meet, but it is not an insurmountable
one. In this case, we do not have to wonder what sentence the district court would
impose if it treated the guidelines as guidelines, because we already know the
court would impose the same sentence. Thus, we can conclusively say the error
did not affect Robles’ substantial rights.
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Robles raises two primary objections to our reliance on the district court’s
statements to find harmless error. First, he contends the district court can now
take into account factors that were previously “not ordinarily relevant,”
specifically age. See U.S.S.G. § 5H1.1-1.6. If the only sentence we were
reviewing was imposed with a mindset that the guidelines were mandatory,
Robles’ argument would carry more weight, but it is undercut by the presence of
an alternative sentence, which was imposed without the restraints previously
placed on district courts. The court’s statements make clear that it did not feel
limited in what evidence it could consider.
Second, Robles argues the district court’s alternative sentence fails to
account for the new emphasis placed on the factors listed in 18 U.S.C. § 3553(a).
After reviewing the § 3553(a) factors, we are at a loss to see how specific
consideration of them could possibly change the result. To the contrary, the
district court already expressly considered punishment and deterrence when
sentencing Robles. See § 3553(a) (“The court . . . shall consider . . . (2) the need
for the sentence imposed – (A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct.”)
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Even if Robles was sentenced post-Booker and we were reviewing for
reasonableness, we would not expect the district court in every case to conduct an
accounting of every § 3553(a) factor, as Robles suggests, and expound upon how
each factor played a role in its sentencing decision. Certainly, the more insight a
district court can provide us with, the better it will be for appellate review,
especially when the court sentences outside of the guidelines; however, when a
district court sentences within the guidelines, we could not expect a court to do
more than was done in this case.
IV. CONCLUSION
The district court stated its sentence would be the same even if the
guidelines were only advisory. Now that the guidelines are only advisory, we
know with certainty beyond a reasonable doubt what the district court would do
upon remand. When an error would not change the achieved result, it is harmless.
If we failed to find the error in the present case harmless, we would be flouting the
Supreme Court’s instruction that we “apply ordinary prudential doctrines,”
Booker, 125 S. Ct. at 769, by setting up in effect a per se rule of reversal for all
constitutional Booker-errors being reviewed for harmlessness. That we will not
do.
AFFIRMED.
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