United States v. Antonio Allen , 142 F. App'x 410 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 29, 2005
No. 03-11689
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-00003-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO ALLEN,
a.k.a Tony Wright, etc.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 29, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
This case is before us for consideration in light of United States v. Booker,
543 U.S. , 125 S. Ct. 738 (2005). Allen v. United States, U.S. , 125 S. Ct.
1023 (2005). We previously affirmed Allen’s convictions but vacated his sentence
and remanded for re-sentencing based upon Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000). See United States v. Allen, 302 F.3d 1260, 1276, 1278-80
(11th Cir. 2002) (“Allen I”). Based on Apprendi, Allen had argued that the district
court erred in sentencing him higher than the statutory maximum for minimum
drug quantities contained in 21 U.S.C. § 841(b)(1)(C) because the quantity of
drugs was neither specified in the indictment nor presented to the jury. Id. at 1276.
At re-sentencing, the district court found that, although only 158 grams of cocaine
and 55 grams of crack cocaine (or the equivalent of 1,131 kilograms of marijuana)
were seized from Allen’s residence, he should be held accountable, as a result of
his leadership role, for the quantity of drugs distributed by the other members of
the conspiracy, which it calculated as 3,000 kg of marijuana equivalent. United
States v. Allen, No. 03-11689, slip op. at 6 (11th Cir. Feb. 5, 2004) (“Allen II”). It
sentenced Allen to concurrent sentences of 235 months on one count and 60
months on another count. Id. at 2; R5 at 40-41. Following re-sentencing, Allen
again appealed and we affirmed. Allen II at 1, 8. On appeal, Allen had again
argued that the district court erred by making findings of fact regarding Allen’s
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accountability for a particular quantity of drugs. Id. at 4-5. We found that the
district court’s factual findings were not clearly erroneous because its
approximation as to the quantity of drugs was “reasonably fair, accurate, and
conservative, and not merely speculative.” Id. at 6-7 (citation and internal
punctuation omitted). The Supreme Court vacated our prior judgment and
remanded for further consideration in light of Booker.
After remand, we directed the parties to file supplemental briefs providing
the court with: (1) a description of when, where, and how the Booker issue was
first raised; and (2) any arguments about whether and how the Booker decision
applies in this case and what action should be taken. In supplemental briefing,
Allen argues that the district court erred by sentencing him based on fact-finding
about both the type and quantity of the drugs to which Allen was held accountable
and regarding Allen’s possession of a firearm. The government concedes that the
district court erred by sentencing Allen under a mandatory guidelines scheme and
to a sentence which exceeded the maximum authorized by jury fact-finding. It also
concedes that Allen raised a constitutional error issue under Apprendi on appeal
and at re-sentencing and is thus entitled to a harmless-error review.1
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As we noted in Allen I, although Apprendi had not been filed at the time of the initial
sentencing, the district court was aware of decisions from other circuits which had addressed
sentencing issues arising from a conspiracy involving multiple controlled substances, no special
verdict as to the various substances, and differing maximum sentences based on the quantity of
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There are two types of Booker error–(1) a “constitutional” error of
imposing a sentence enhancement based upon a judicial finding that goes beyond
the facts admitted by a defendant or found by a jury, and (2) a “statutory” error of
imposing a sentence under a mandatory guidelines system. United States v.
Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). We review the constitutional
error de novo and, unless the government can demonstrate that the error was
harmless beyond a reasonable doubt, will reverse and remand. United States v.
Paz, 405 F.3d 946, 948-49 (11th Cir. 2005) (per curiam). Under the harmless-
analysis, the government must show that the constitutional sentencing error neither
contributed to the defendant’s sentence nor otherwise affected the defendant’s
substantial rights. Id. at 948. “A non-constitutional error is harmless if, viewing
the proceedings in their entirety, a court determines that the error did not affect the
sentence, or had but very slight effect. If one can say with fair assurance . . . that
the sentence was not substantially swayed by the error, the sentence is due to be
affirmed even though there was error.” United States v. Mathenia, 409 F.3d 1289,
1292 (11th Cir. 2005) (per curiam) (citation and quotation omitted). In reviewing
drugs for each substance. See Allen I, 302 F.3d at 1267-68. In light of Apprendi, we conducted
a plain error review and determined that Allen’s sentence should be properly limited to the
statutory maximum for the quantity of drugs that was “essentially uncontroverted” and supported
by “overwhelming” evidence. Allen I, 302 F.3d at 1278-79.
An issued raised under Apprendi raises by extension an issue pursuant to Blakely v.
Washington, 542 U.S. , 124 S. Ct. 2531 (2004) and United States v. Booker, 543 U.S. , 125
S. Ct. 738 (2005). See United States v. Grant, 397 F.3d 1330, 1331 n.2 (11th Cir. 2005).
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the district court’s mandatory use of the guidelines, the government is unable to
meet its burden to show harmlessness or no effect on substantial rights if the record
does not indicate whether or not the district court would have sentenced the
defendant the same under an advisory sentencing scheme. United States v. Davis,
407 F.3d 1269, 1271-72 (11th Cir. May 4, 2005) (per curiam).
Allen’s Sixth Amendment rights were violated when the district court
enhanced his sentence, under a mandatory guidelines system, based on facts not
found by a jury or admitted by Allen. The district court increased Allen’s sentence
based on facts which were neither found by the jury nor admitted by Allen
regarding the quantity of drugs involved in Allen’s conviction and regarding his
possession of a weapon. The district court also sentenced Allen under a mandatory
Guidelines scheme.
The government cannot meet its burden. Although we have previously held
that the district court’s factual finding regarding the quantity of drugs was based on
a “‘reasonably fair, accurate, and conservative, and not merely speculative’”
approximation, Allen II, at 7-8 (citation and internal punctuation omitted), in light
of Booker, that finding is no longer appropriate. Because the district court cannot
enhance Allen’s sentence based solely on a judicially-found fact pursuant to a
mandatory guidelines scheme, it cannot consider factors not found by the jury.
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Specifically, because the jury found Allen guilty of offenses involving only
cocaine and marijuana, the district court cannot enhance Allen’s sentence for his
involvement with cocaine base. Further, we do not know how the district court
would have sentenced Allen if it had treated the guidelines as advisory rather than
mandatory and if it had considered the factors in 18 U.S.C. § 3553(a).
In light of Booker, the district court violated Allen’s Sixth Amendment
rights by enhancing his sentence based solely on judicially found facts pursuant to
a mandatory, rather than advisory, sentencing scheme. We, therefore, REVERSE
and REMAND for re-sentencing consistent with Booker.
REVERSED and REMANDED.
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