[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 4, 2005
No. 04-14585 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00004-CR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMMY DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 4, 2005)
Before ANDERSON, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
In this case, we apply harmless error analysis to a claim made pursuant to
United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). We reject the
Government's argument that the grant of its U.S.S.G. § 5K1.1 motion eliminated
or rendered harmless any Booker error. Accordingly, we vacate Davis's sentence,
and remand for resentencing consistent with the Supreme Court opinions in
Booker.
Timmy Davis pleaded guilty to possession of pseudoephedrine with intent
to manufacture methamphetamine, a violation of 21 U.S.C. § 841(c)(1). In his
guilty plea, Davis did not admit to any specific drug quantity. At sentencing, the
district court determined that 11.82 grams of pseudoephedrine was attributable to
Davis, and following the then-mandatory Federal Guidelines, assigned him a base
level of twenty-six. The court reduced this to level twenty-three after giving him
credit for acceptance of responsibility. The court computed Davis's criminal
history as category two, and noted that the guidelines recommended a range of 51-
63 months' imprisonment for criminal history category two at offense level
twenty-three. The Government made a motion for downward departure pursusant
to U.S.S.G. § 5K1.1 because Davis cooperated with the Government, and his
cooperation helped the Government obtain guilty pleas from other defendants.
The sentencing court granted the motion, departed downward from the guidelines,
and imposed a sentence of 38 months' imprisonment.
While this case was pending on appeal, the Supreme Court decided United
2
States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005). In Booker, the Supreme
Court did two things: first, following Blakely v. Washington, 542 U.S. ___, 124 S.
Ct. 2531 (2004), it held that sentence enhancements based solely on judicially
found facts pursuant to the mandatory Federal Sentencing Guidelines violated the
Sixth Amendment; and second, it rendered the guidelines effectively advisory in
order to comport with the Sixth Amendment by excising those provisions of the
statute that made the guidelines mandatory. Id. at ___,125 S.Ct. at 749-51, 764.
The Supreme Court stated that even though the guidelines were effectively
advisory, the Federal Sentencing Act "nonetheless requires judges to take account
of the Guidelines together with other sentencing goals" announced in 18 U.S.C. §
3553(a). Id. at __, 125 S.Ct. at 764.
Davis's sentence was enhanced, under a mandatory guidelines system, based
on facts found by the judge and not admitted by him, and Booker indicates that
was a violation of Davis's Sixth Amendment right. Id. at __, 125 S.Ct. at 756.
In the district court and in his initial brief on appeal, Davis argued that the court's
finding with respect to drug quantity violated his constitutional rights according to
the Supreme Court's decision in Blakely. Davis therefore timely raised his
constitutional objection. Accordingly, we review the constitutional issue de novo,
and we will reverse and remand unless the Government can demonstrate that the
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error was harmless beyond a reasonable doubt. See United States v. Paz,
__F.3d__, 2005 WL 757876 (11th Cir. April 5, 2005) (applying harmless error
review to a sentence imposed using extra-verdict enhancements in a mandatory
guideline system).
In Paz, we explained that harmless error analysis puts the burden on the
Government to show "'beyond a reasonable doubt that the error complained of did
not contribute to the sentence obtained.'" Id. at __, 2005 WL 757876 at *2
(quoting United States v. Candelario, 240 F.3d 1300, 1307 (11th Cir. 2001)). In
cases involving preserved Booker error, the Government must show that the
mandatory, as opposed to the advisory, application of the guidelines did not
contribute to the defendant's sentence. Id. at __, 2005 WL 757876 at *2 (holding
that the Government could not meet its burden under harmless error analysis
because the record indicated that had the guidelines been advisory, his sentence
would have been shorter); see also United States v. Rodriguez, 398 F.3d 1291,
1300-01 (11th Cir. 2005) (applying plain-error review and stating the
constitutional error in Booker depended on a mandatory application of the
guidelines, and the question of prejudice turned on the probability of a different
result in an advisory, as opposed to a mandatory, guidelines system).
In Davis's case, the Government argues that the mandatory application of
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the guidelines was harmless because the Government requested, and the judge
applied, a downward departure pursuant to U.S.S.G. § 5K1.1. U.S.S.G. § 5K1.1 is
a provision of the guidelines that allows the court to depart from the guidelines
based on the defendant's assistance to authorities when the Government motions
for such a departure. According to the Government, its § 5K1.1 motion gave the
court "virtually unfettered discretion to impose a sentence outside the guidelines
range." The Government reasons that this discretion removed any Booker error, or
rendered any Booker error harmless because the guidelines were not "mandatory"
in this particular case.
We cannot conclude that the sentencing court's grant of the § 5K1.1 motion
either removed Booker error or rendered it harmless beyond a reasonable doubt.
The flaw in the Government's argument is that the grant of § 5K1.1 did not give
the sentencing court "unfettered" discretion, but rather, gave the court only limited
discretion to consider the assistance that Davis rendered. This Court had
previously stated, "When, on the Government's motion, a district court grants a
downward departure under U.S.S.G. § 5K1.1 . . ., the sentence reduction may be
based only on factors related to the defendant's substantial assistance." United
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States v. Luiz, 102 F.3d 466, 469 (11th Cir. 1996).1 While the sentencing court
had discretion under § 5K1.1 in deciding whether to depart from the guidelines
and the extent of that departure, it did not have the discretion to consider factors
unrelated to the nature and type of Davis's assistance. Importantly, the sentencing
court could not permissibly consider the sentencing factors announced in 18
U.S.C. § 3553(a) when exercising its discretion.
We simply do not know what the sentencing court would have done had it
understood the guidelines to be advisory rather than mandatory, and had properly
considered the factors in 18 U.S.C. § 3553(a). Therefore, the Government cannot
meet its burden of showing that the mandatory application of the guidelines in
violation of Davis's Sixth Amendment right was harmless beyond a reasonable
doubt. Cf. Rodriguez, 398 F.3d at 1301 (applying plain error analysis, and stating
that because the defendant bore the burden of persuasion and no one could know
what would have happened in an advisory system, the defendant could not meet
his burden).
Accordingly, we REVERSE and REMAND for re-sentencing consistent
with Booker.
1
The Government's brief emphasizes that Davis's plea agreement acknowledged
"whether or not the sentencing court decides to depart downward below a guideline range or
statutory minimum sentence, or reduce the defendant's sentence, as well as the extent of any such
downward departure or reduction, is completely within the sentencing court's discretion." This is
simply an acknowledgment of the sentencing court's limited discretion to depart downward on
the basis of Davis's assistance.
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