                                                                          [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT         FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                         ELEVENTH CIRCUIT
                                      No. 04-15339                         December 13, 2005
                                ________________________                  THOMAS K. KAHN
                                                                               CLERK

                           D. C. Docket No. 04-14028 CR-DMM

UNITED STATES OF AMERICA,

                                                                     Plaintiff-Appellee,

       versus

MICHAEL DUKE BUTLER,

                                                                     Defendant-Appellant.

                             ____________________________

                       Appeal from the United States District Court
                          for the Southern District of Florida
                          _____________________________

                                     (December 13, 2005)

Before EDMONDSON, Chief Judge, BARKETT, Circuit Judge, and HUNT*,
District Judge.

PER CURIAM:



  *
    Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of Georgia,
sitting by designation.
       Defendant Michael Duke Butler appeals his 33-month sentence for

possession with intent to distribute a mixture containing methamphetamine.

Butler pleaded guilty and admitted to only those facts contained in his one-count

indictment: that he possessed a quantity of drugs “in excess of five grams.”

Butler’s pre-sentence investigation report indicated that officers actually recovered

23.9 grams of drugs from Butler’s possession. The district court relied on the

23.9-gram quantity in computing Butler’s initial base offense level under the

federal sentencing guidelines.1 Based on the base offense level and Butler’s

criminal history, he was subject to a 30-37 month prison sentence; he was

sentenced to 33 months imprisonment.

       Butler argues that his sentence violated the Supreme Court’s decision in

United States v. Booker, -- U.S. --, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005),

because the sentence was enhanced based on facts that were neither proved in

court nor admitted to by him. He contends that his initial base offense level under

the guidelines should have been based only on his possessing “in excess of five




   1
   The court applied a base offense level of 20, which corresponds with possessing “[a]t least 20
G but less than 30 G of Methamphetamine.” U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(10)
(2003).

                                               2
grams.”2 We conclude that the court committed harmful error and remand for

resentencing.

       Butler objected to his sentencing enhancements in district court; so we

review his sentence de novo. United States v. Paz, 405 F.3d 946, 948 (11th Cir.

2005).

       The district court committed constitutional Booker error. See United States

v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005) (“The holding in Booker is

that the Sixth Amendment right to trial by jury 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.”). We, however, will disregard that error if the error was

harmless. Paz, 405 F.3d at 948 (citing Fed. R. Crim. P. 52(a)). Because Butler

alleges constitutional Booker error, harmless error may only exist “where it is

clear beyond a reasonable doubt that the error complained of did not contribute to

the [sentence] obtained.” United States v. Candelario, 240 F.3d 1300, 1307 (11th

Cir. 2001) (emphasis added). The government bears the burden of proving that

the error was harmless. Paz, 405 F.3d at 948.


   2
    Butler contends that he should have been subject to an initial base offense level of 16, which
corresponds with possessing “[a]t least 5 G but less than 10 G of Methamphetamine.” U.S.
SENTENCING GUIDELINES MANUAL § 2D1.1(c)(12) (2003).

                                                3
       The government points to two facts that it claims support its argument that

the court’s Booker error was harmless: (1) the court’s professed concern about the

“quality and nature” of Butler’s prior drug-related convictions,3 and (2) Butler

received a sentence in the middle of the applicable sentencing range. We believe

that these facts are insufficient to carry the government’s burden.

       In those cases in which we have deemed constitutional Booker error

harmless, the sentencing court plainly stated its intent to impose the same sentence

under an advisory guidelines system. See United States v. Robles, 408 F.3d 132

(11th Cir. 2005) (“[M]y sentence would be the same regardless of whether Blakely

had invalidated the guidelines or not, because I would apply them as guidelines

and reach the same conclusion that I will here today.”); see also United States v.

Lee, 427 F.3d 881 (11th Cir. 2005) (concluding that constitutional Booker error

was harmless beyond a reasonable doubt when court stated it would impose same

sentence under advisory guidelines system). Cf. Paz, 405 F.3d at 949 (remanding

for resentencing when court stated that sentence would be reduced under advisory

guidelines system). The district court made no similar statements of intent in

Butler’s case. A plainly expressed statement might not always be needed. But



   3
    The court described Butler’s prior conviction for carrying a gun during a drug-related offense
as “a little disturbing” and “troublesome.”

                                                4
without a strong indication of some kind from the sentencing court, we cannot say

that it is clear beyond a reasonable doubt that the error did not contribute to

Butler’s sentence.

      That the court imposed a sentence in the middle of the guidelines range is

not sufficiently indicative of harmless error. Never have we concluded that the

sentence’s place within the middle of the range, taken alone, is sufficient indicia of

harmless error. See United States v. Mejia-Giovani, 416 F.3d 1323 (11th Cir.

2005) (noting mid-range sentence among several factors in affirming sentence,

including court’s repeated warnings that defendant could be subject to upward

departure). Merely sentencing Butler in the middle of the guidelines range is not

enough to indicate clearly how the court would have sentenced Butler under an

advisory guidelines system. “Where it is unclear whether the court would have

imposed the same sentence but for the mandatory guidelines, the government

cannot show that the error was harmless.” United States v. Cotledge, No. 04-

15648 (11th Cir. Aug. 10, 2005).

      Because the government cannot meet its burden to show harmless error, we

VACATE Butler’s sentence and REMAND to the district court for resentencing.




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