                                                                   [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                   FOR THE ELEVENTH CIRCUIT

                       -------------------------------------------          FILED
                                    No. 04-15503                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                              Non-Argument Calendar                     November 8, 2005
                      -------------------------------------------- THOMAS K. KAHN
                                                                           CLERK
                    D.C. Docket No. 04-20373-CR-CMA


UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                        versus

ANDREW BLAKE,

                                                       Defendant-Appellant.


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                 Appeal from the United States District Court
                      for the Southern District of Florida
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                                (November 8, 2005)


Before EDMONDSON, Chief Judge, ANDERSON and PRYOR, Circuit Judges.


PER CURIAM:
      Andrew Blake appeals his 121-month sentences, pursuant to his guilty plea,

for conspiracy to possess with intent to distribute heroin, 21 U.S.C. § 846, and

possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1). No reversible

error has been shown; we affirm.

      At the guilty plea hearing, the government proffered a factual basis for the

offenses as follows. Blake had given a co-conspirator, who later became a

confidential source (CS), approximately two kilograms of heroin. Blake told the

CS to transport the heroin from Miami Beach to New York City. The CS was

stopped in Georgia for a traffic violation while en route to New York; law

enforcement discovered the heroin in a secret compartment in the CS’s vehicle.

The CS named Blake as the source of the heroin. The CS made a recorded call to

Blake and told him that his vehicle had broken down and had been impounded.

The government indicated that Blake told the CS that he, Blake, was “out

$100,000 if the heroin was lost.” Blake offered to hire a lawyer for the CS. When

Blake met the CS to give him money to retrieve the vehicle from impound, Blake

was arrested. Blake told the district court that the government’s proffer was an

accurate statement of what had occurred and that he did not disagree with the

factual proffer.




                                         2
       The probation officer recommended a two-level leadership increase, under

U.S.S.G. § 3B1.1(c). The presentence investigation report included Blake’s

acceptance of responsibility statement, in which Blake stated, “I acknowledge

having involved myself in a drug transaction by arranging for the transportation of

approximately two kilograms of heroin from Miami, Florida to New York. I am

was [sic] the one that recruited [the CS], the person that took possession of the

heroin . . .”

       Before sentencing, Blake requested, under Brady v. Maryland, 83

S.Ct. 1194 (1963), Kyles v. Whitley, 115 S.Ct. 1555 (1995), and Napue v. Illinois,

79 S.Ct. 1173 (1959), production of government materials on the CS because the

CS was the exclusive source of information about the underlying facts of the

offense. Blake objected that the leadership enhancement violated his Fifth and

Sixth Amendment rights under Blakely v. Washington, 124 S.Ct. 2531 (2004).

Blake also objected to the use of his agreement with the government’s factual

proffer as a basis for the leadership enhancement. The district court overruled his

objections and denied as moot the request for Brady material based on the

government’s representation that it had produced all the material in its possession.




                                          3
       Blake argues on appeal that we should vacate and remand his sentence in

the light of United States v. Booker, 125 S.Ct. 738 (2005).1 We review this issue

de novo; we will reverse unless the government shows that any error was

harmless. See United States v. Robles, 408 F.3d 1324, 1327 (11th Cir. 2005).

       No Sixth Amendment violation occurred here. We have stated that a

defendant’s Sixth Amendment rights are not violated under Booker when the

defendant’s sentencing enhancements are based either on prior convictions or on

facts admitted by the defendant. See United States v. Shelton, 400 F.3d 1325,

1329-30 (11th Cir. 2005). Blake agreed to the government’s factual proffer at the

guilty plea hearing, and the district court based the leadership enhancement on the

factual proffer and on Blake’s acceptance of responsibility statement.

       But the district court did commit a statutory error under Booker by

sentencing Blake under a mandatory guidelines scheme. See id. at 1330-31.

Booker statutory errors are subject to a less demanding harmless error test

applicable to non-constitutional errors. See United States v. Mathenia, 409




   1
    To the extent that Blake in his reply brief challenges the district court’s determination that the
facts set out in the government’s proffer and in Blake’s responsibility statement support the
leadership role enhancement, he abandoned this issue by failing to raise it in his initial appellate
brief. See United States v. Day, 405 F.3d 1293, 1294 n.1 (11th Cir. 2005) (stating that issues not
timely raised in initial brief are deemed waived or abandoned).

                                                  4
F.3d 1289, 1292 (11th Cir. 2005). That standard requires us to determine whether

the error either did not affect the sentence or only had a slight effect. Id.

        “The non-constitutional harmless error standard is not easy for the

government to meet.” Id. But here, the government has met its burden.                    After

overruling Blake’s Blakely objection, the district court stated that it would have

imposed the same sentence even if the guidelines were deemed unconstitutional.

See Mathenia, 409 F.3d at 1292. The government has shown beyond a reasonable

doubt that the Booker statutory error--the application of the guidelines in a

mandatory fashion--did not effect, or had only a slight effect, on Blake’s

sentence.2

        Blake next argues that the district court erred by relying on his agreement

with the government’s factual proffer at the guilty plea hearing to discharge the

government’s burden of proof on the leadership enhancement. Citing United

States v. Mitchell, 119 S.Ct. 1307 (1998), Blake contends that his guilty plea did

not result in a waiver of his privilege against self-incrimination.




    2
      We reject Blake’s contention that he was “precluded from focusing on the new criteria”
announced by Booker: the sentencing factors set out in 18 U.S.C. § 3553(a)(2). Even before Booker,
district courts were required to consider § 3553(a) when fashioning a proper sentence. See 18 U.S.C.
§ 3553(a).

                                                 5
      We review de novo rulings on a defendant’s invocation of his privilege

against self-incrimination. United States v. Hernandez, 141 F.3d 1042, 1049 (11th

Cir. 1998). And we reject Blake’s argument. First, we have determined that, in

sentencing a defendant, a district court may rely on facts the defendant admits

during the plea colloquy. See Shelton, 400 F.3d at 1330. Also, Mitchell does not

support Blake’s argument. The Supreme Court determined in Mitchell that a

guilty plea does not constitute a waiver of the privilege against self-incrimination

at sentencing and that a sentencing court may not draw an adverse inference from

a defendant’s silence. 119 S.Ct. at 1309. But the Court also stated that “once the

plea has been accepted, statements or admissions made during the preceeding plea

colloquy are later admissible against the defendant, as is the plea itself.” Id.

at 1313. The district court committed no error in using Blake’s agreement with the

factual proffer at the plea hearing when the court imposed the leadership

enhancement.

      Blake argues last that the district court erred in denying his request for

Brady/Kyles material, about the CS’s credibility and about the information that the

CS provided, that Blake wished to use at sentencing. We review alleged Brady

violations de novo. United States v. Schlei, 122 F.3d 944, 989 (11th Cir. 1997).

Among other things, a defendant seeking reversal of his conviction based on an

                                           6
alleged Brady violation must establish “that had the evidence been revealed to the

defense, there is a reasonable probability that the outcome of the proceedings

would have been different.” Id.

      Blake agreed to the government’s factual proffer at the guilty plea hearing

and provided an acceptance-of-responsibility statement. The district court relied

on this evidence--Blake’s own statements and admissions--in imposing the

leadership enhancement. Even if the government had possessed and produced

material about the CS that Blake requested, we cannot say a reasonable probability

existed that this material would have helped Blake in challenging the leadership

role enhancement.

      In sum, we reject Blake’s arguments and affirm his sentences.

      AFFIRMED.




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