United States v. John Sanders, Jr. , 149 F. App'x 929 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 16, 2005
No. 04-14095
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 04-00048-CR-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN SANDERS, JR.,
a.k.a. Bubba,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 16, 2005)
Before ANDERSON, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant John Sanders, Jr. appeals his 135-month sentence for conspiracy
to distribute and possess with intent to distribute 5 kilograms or more of cocaine
and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii), (iii) and 846. On appeal, Sanders argues that, in light of United
States v. Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) and
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004),
the district court violated his Fifth and Sixth Amendment rights in enhancing his
sentence based on the determination that he was accountable for 4.8 kilograms of
crack, a drug quantity that was found by the district court and was not charged in
the indictment or expressly admitted to by Sanders. Sanders notes that the district
court stated at sentencing that it would apply the guidelines regardless of whether
they were mandatory.
We review a defendant’s preserved constitutional challenge to his sentence
de novo on appeal but will reverse only for harmful error. United States v. Paz,
405 F.3d 946, 948 (11th Cir. 2005). There are two harmful error standards, one
that applies to constitutional Booker errors and one that applies to statutory Booker
errors. United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005).
"[C]onstitutional errors are harmless where the government can show, beyond a
reasonable doubt that the error did not contribute to the defendant's ultimate
sentence. . . ." Id. at 1291. However, "[a] non-constitutional [statutory] error is
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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." Id. at 1292.
(internal quotations omitted). The government has the burden of proof under both
standards. Id. at 1291-92. A constitutional Booker error has been committed when
a judge enhances an individual's sentence based solely on judicially found facts
pursuant to a mandatory guideline system, in violation of that individual's Sixth
Amendment right to trial by jury. Paz, 405 F.3d at 948. A statutory Booker error
has been committed "when the district court sentences a defendant ‘under a
mandatory [g]uidelines scheme, even in the absence of a Sixth Amendment
enhancement violation.'" Mathenia, 409 F.3d at 1291. (quoting United States v.
Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005)).
In the present case, the record demonstrates that the district court sentenced
Sanders using a base offense level of 38, relying on a finding in the Presentence
Investigation Report (“PSI”) that Sanders was accountable for a drug quantity of
4.8 kilograms of crack, rather than using a base offense level corresponding to the
amounts that Sanders contends he admitted to in his plea colloquy. Sanders argues
that he objected to the PSI's conclusion both in the PSI and at the sentencing
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colloquy; however, the record shows that he only objected on the basis of Blakely.
Neither time did he explicitly state that he was only responsible for a lesser
amount of cocaine or crack. Because Sanders only objected to the district's court
use of the 4.8 kilograms of crack in calculating his sentence – and not the facts
supporting that drug quantity – he is deemed to have admitted to those facts.
United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). Because Sanders
admitted to the underlying facts, the district court did not commit a constitutional
Booker error in enhancing Sanders's sentence based on the 4.8 kilograms of crack
for which he was found to be accountable. However, the district court still
committed statutory Booker error when it sentenced Sanders under the then-
mandatory guidelines scheme. Mathenia, 409 F.3d at 1291.
When the district court commits a statutory Booker error, the government
must prove that, when the proceedings are viewed in their entirety, the error did not
affect the sentence or had but a slight effect on the sentence. Id. at 1292. Here, the
district court stated that it would have imposed the same sentence regardless of
whether the sentencing guidelines were mandatory or advisory. The court added
that it found that this sentence "meets the goals of punishment and will act,
hopefully, as a deterrent to others who might consider similar criminal conduct."
We have held that when a district court announces an alternative sentence that
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would have been imposed if the district court had treated the guidelines as
advisory, then we know "with certainty beyond a reasonable doubt what the district
court would do upon remand." United States v. Robles, 408 F.3d 1324, 1328 (11th
Cir. 2005). When the alternative sentence is identical to the sentence under the
mandatory guidelines, the error would not change the ultimate sentence, and
therefore it is harmless. Id. See also Unites States v. Petho, 409 F.3d 1277, 1279-
80 (11th Cir. 2005). In Robles, we applied the higher standard necessary to show
harmless error for a constitutional Booker error. Robles, 408 F.3d at 1327. Like in
Robles, the district court here explicitly stated that even if the guidelines were
advisory, it would impose an identical sentence. If the more stringent standard of
harmless error is satisfied, then the less stringent standard necessary for statutory
Booker errors will also be satisfied. This then is harmless error. Accordingly, we
affirm Sanders’s sentence.
AFFIRMED.
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