                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                                                            December 2, 2005
                         FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                             No. 04-60973



     UNITED STATES OF AMERICA,


                                            Plaintiff-Appellee,
          versus



     ROBERT D. BURKE,

                                            Defendant-Appellant.




          Appeal from the United States District Court
             for the Northern District of Mississippi



Before GARWOOD, SMITH, and DEMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

     Defendant-appellant Robert D. Burke was convicted pursuant to

a guilty plea of attempt to commit extortion under color of

official right contrary to 18 U.S.C. §§ 1951–52. Burke challenges

his 96-month sentence.    We affirm.

                   FACTS AND PROCEEDINGS BELOW

     Robert Burke, an Alderman for Holly Springs, Mississippi, was

indicted for one count of conspiracy to aid in the distribution of

more than five kilograms of cocaine, and five counts of attempt to
commit extortion under the color of official right.   Burke pleaded

guilty to a single count of extortion (count two) under a plea

agreement providing that the court would not sentence Burke to more

than ten years’ imprisonment and that the remaining counts would be

dismissed.

     At Burke’s plea colloquy, the prosecutor read nine paragraphs

into the record to establish a factual basis for the plea.    These

nine paragraphs described a reverse-sting operation in which, on

five separate occasions, Burke and his co-conspirators were paid

money to provide a police escort for what they believed were

shipments of 50 to 100 kilograms of cocaine.      In fact, only a

single 1 kilogram bag in each shipment contained real cocaine.   The

rest of the purported cocaine in these five shipments was fake.

     This account was far more information than necessary to

support Burke’s guilty plea to extortion.      However, after the

prosecutor read these facts into the record, the court asked Burke,

“[i]s there anything he said that you would disagree with?”   Burke

responded “No, sir, Your Honor.”

     The pre-sentence report (PSR) assessed a base level of 10

pursuant to U.S.S.G. §§ 1x1.2, 2C1.1(a)(2003).     Two levels were

added pursuant to U.S.S.G. § 1C1.1(b)(1) because the offense

involved more than one bribe or extortion.    The PSR then added 8

levels pursuant to U.S.S.G. § 2C1.1(2)(B) because the offense

involved a public official.   These adjustments produced an offense



                                   2
level of 20.

     But, U.S.S.G. § 2C1.1, the sentencing guideline for extortion

under color of official right, cross-references different sections

of the guidelines that should instead apply if the resulting

offense level would be higher than the level determined under

section 2C1.1 itself.     One of these cross-references advises: “If

the offense was committed for the purpose of facilitating the

commission of another criminal offense, apply the offense guideline

applicable to a conspiracy to commit that other offense . . . .”

U.S.S.G. § 2C1.1(c)(1).

     Burke had already admitted, during his plea colloquy, that the

extortion   was    committed   for   the   purpose   of   facilitating   the

commission of another criminal offense: aiding in the distribution

of cocaine.       So, as the PSR recommended, the sentencing court

applied the section 2C1.1(c)(1) cross reference and, instead of the

20 levels calculated under section 2C1.1, the court assessed 38

levels for conspiracy to aid in the distribution of 500 kg of

cocaine.1   After a few more adjustments, including a section 3B1.3

two-level increase for abuse of public trust, Burke was sentenced

based on an offense level of 35 and a criminal history category of


     1
     Burke, by his agreement to the prosecutor’s statement of
the evidence at the Rule 11 hearing, admitted that he had agreed
to escort what he believed to be 350 kg of cocaine. The PSR used
the figure 500 kg, to which Burke objected to below. But, as
Burke admitted in his objection, the difference is immaterial
because the sentencing guidelines do not address cocaine-quantity
ranges above 150 kg.

                                      3
I.   This resulted in a guidelines imprisonment range of 168-210

months.    However, after calculating Burke’s sentence under the

guidelines, the court accepted, under Rule 11(c)(1)(C), the plea-

agreement sentencing cap of ten years, granted the government’s

section 5K1.1 motion for downward departure, and sentenced Burke to

96 months with 2 years supervised release.       Burke raises four

issues on appeal.   We discuss each in turn.

                             DISCUSSION

I.   Sentencing Based on Fake Cocaine

     Burke argues that the sentencing court erred in considering

fake cocaine in its drug quantity calculation.   As a result, he

contends that his sentence should be based on conspiracy to aid

in the distribution of 1 kilogram of real cocaine, not 150 or

more kilograms of mostly fake cocaine.

A.   Standard of Review

     The question presented here is, with respect to the crime of

conspiracy to aid in the distribution of drugs, whether the

sentencing court should include fake drugs in its drug quantity

calculation.    This is a legal question as to the interpretation

and application of the sentencing guidelines which we review de

novo.    United States v. Villegas, 404 F.3d 355, 359 (5th Cir.

2005).

B.   Conspiracy and Fake Drugs

     A defendant may not be convicted of the possession or sale


                                  4
of drugs unless the defendant possesses or sells actual drugs.

See United States v. Bobo, 586 F.2d 355, 371 (5th Cir. 1978),

cert. denied, 99 S.Ct. 1546 (1979). However, factual

impossibility does not preclude a conviction for conspiracy or

attempt.   See United States v. Pietri, 683 F.2d 877, 879 (5th

Cir. 1982).   Because the act of conspiracy is complete upon the

formation of an illegal agreement, a defendant can be convicted

of conspiracy to aid in the distribution of drugs even if those

drugs are fake.   Id.   (“The fact that the cocaine which they

thought they were receiving was a fake substance does not affect

their intent to obtain the genuine article.”).    See also United

States v. Murray, 527 F.2d 401, 411–12 (5th Cir. 1976) (upholding

a conviction for conspiracy to distribute heroin even though it

turned out to be lactose).

     The question raised in Burke’s objection is whether it

follows that because a defendant can be convicted of conspiracy

to distribute fake drugs, then a defendant’s sentence for a drug

conspiracy may be based on a quantity of fake drugs.   We hold

that a sentence for drug conspiracy may be based on fake drugs.

We are guided in this respect by the commentary to U.S.S.G. §

2D1.1.   That commentary explains that where the drug offense

involves an agreement to buy or sell, “the agreed-upon quantity

of the controlled substance shall be used to determine the




                                  5
offense level.”2       U.S.S.G. § 2D1.1, Commentary, Application Note

12.   Thus, for inchoate offenses, the quantity of drugs is based,

not on the amount actually delivered, but on the amount agreed

upon. United States v. Lombardi, 138 F.3d 559, 562 (5th Cir.

1998).     See also United States v. Dallas, 229 F.3d 105, 108–10

(2d Cir. 2000).       Indeed, in convictions based on reverse-sting

operations such as this one, where the actual quantity of drugs

is controlled by the government instead of by the defendant, the

quantity of drugs agreed upon more accurately reflects the scale

of the offense than the quantity actually delivered.       U.S.S.G. §

2D1.1 Commentary, Application Note 12.

      Accordingly, Burke’s sentence for drug conspiracy is

properly based upon the amount he agreed to escort.       His crime

was complete when he agreed to aid in the distribution of 350

kilograms of cocaine with the intent to achieve that objective.

          II.   Quantities That Were Part of the Dismissed Counts

      Even if fake cocaine is properly included in the drug

quantity calculation, Burke argues that the sentencing court

erred in considering the entire 350 kilograms of cocaine, real

and fake, admitted to during the plea colloquy.       Instead, Burke

argues, the      district court should have considered only the 50

kilograms involved in count two, the count to which Burke pleaded

guilty.


      2
       There are exceptions that do not apply here.

                                     6
A.   Standard of Review

       The question of whether the sentencing court is limited to

the quantity of drugs that provided the factual basis for

conviction is a legal question concerning the interpretation and

application of the sentencing guidelines that we review de novo.

Villegas, 404 F.3d at 359.       Because Burke objected to the PSR’s

consideration of the entire 350 kilograms of cocaine, our de novo

review of the record is for harmless error.       United States v.

Ahmed, 324 F.3d 368, 374 (5th Cir. 2003).3



B.     Harmless Error

       Rule 52(a) of the Federal Rules of Criminal Procedure

provides that “[a]ny error . . . that does not affect substantial

rights must be disregarded.”       Fed.R.Crim.P. 52(a).   Thus, an

error in the application of the sentencing guidelines can be

disregarded as harmless if it “did not affect the district

court’s selection of the sentence imposed.”        Ahmed, 324 F.3d at

374.       It is the proponent of the sentence, here the government,

that bears the burden to “persuade[] the court of appeals that

the district court would have imposed the same sentence absent


       3
     There is no preserved constitutional error. Burke did           not
object to his sentence on Sixth Amendment grounds, although,         as
we address later, he now argues Booker on appeal. Moreover,          in
his brief on appeal, Burke does not challenge either his
conviction or sentence on Fifth Amendment grounds; he argues         only
that the guidelines were misapplied.

                                     7
the erroneous factor.”   United States v. Tello, 9 F.3d 1119, 1129

(5th Cir. 1993)(quoting Williams v. United States, 503 U.S. 193,

203 (1992)).4

     We conclude that the government has met that burden.     At the

Rule 11 hearing, Burke did not dispute that “[o]n July 6, 2001,

as described in count two, Mr. Burke and others provided

protection by providing an escort for a shipment of what was

purported to be 50 kilograms of cocaine.”   Thus, Burke has

conceded that at least 50 kilograms of cocaine are relevant to

his guilty plea.

     A reduction in the quantity of cocaine from 350 kg to 50 kg

would not have affected Burke’s sentence, because either quantity

yields a sentence much longer than the ten-year cap.   That is,

350 kilograms of cocaine results in an offense level of 35,

yielding a range of 168–210 months; 50 kilograms results in an

offense level of 33, yielding a range of 135–168 months.      See

U.S.S.G. § 2D1.1(c).   The bottom of either range substantially

exceeds both the 120 month agreed sentence cap and Burke’s

ultimate sentence of 96 months.

     This is not simply a case where the same sentence is



     4
     We understand this to be the proper standard for review of
non-constitutional sentencing errors. However, we recognize that
in what may be a similar circumstance a prior panel of this court
did apply, without citation, the “beyond a reasonable doubt”
standard. United States v. Lopez-Urbina, __ F.3d __ (5th Cir.
2005) (2005 WL 1940118 at *11).

                                  8
included in both the incorrect and the correct sentencing ranges.

See e.g., United States v. Lopez-Urbina, __F.3d__ (5th Cir.

2005). In such cases, it is more difficult for the government to

bear its burden of proving that “the district court would have

imposed the same sentence absent the erroneous factor.” United

States v. Tello, 9 F.3d 1119, 1131 (5th Cir. 1993).   Instead, in

this case any alleged errors are moot because the defendant’s

sentence was determined entirely by only two independent factors:

(1) The ten-year sentencing cap and (2) the downward departure

for substantial assistance to authorities under section 5K1.1.

     Neither of these two factors is influenced by the quantity

of drugs (50 or 350 kg).   The ten-year cap, if accepted by the

court, functions without regard to drug quantity or to the

severity of the sentence previously calculated.   Furthermore,

with respect to section 5K1.1, neither the considerations listed,

nor the policy statement provided, suggest that the severity of

the crime——here determined by the quantity of drugs——should

influence the amount of the substantial-assistance reduction.5

C.   Quantities of Cocaine


     5
     The substantial assistance to authorities departure
guideline provides a non-exhaustive list of factors that a
sentencing court should consider when applying 5K1.1. These
factors are: (1) the court’s evaluation of the significance and
usefulness of the defendant’s assistance; (2) the truthfulness of
information provided by the defendant; (2) the nature and extent
of the defendant’s assistance; (4) any injury suffered, or any
danger faced by the defendant; (5) the timeliness of the
defendant’s assistance. U.S.S.G. § 5K1.1.

                                 9
       In any event, even if the consideration for sentencing

purposes of more cocaine than the 50 kilograms involved in count

two cannot be considered harmless, Burke would still lose.      The

sentencing guidelines provide that “[t]ypes and quantities of

drugs not specified in the count of conviction may be considered

in determining the offense level.”    U.S.S.G. § 2D1.1 comment

n.12; U.S.S.G. § 1B1.3(a)(2) (relevant conduct).      An applicable

comment to the guidelines gives the following example:

       “For example, where the defendant engaged in three drug
       sales of 10, 15, and 20 grams of cocaine, as part of the
       same course of conduct or common scheme or plan, subsection
       (a)(2) provides that the total quantity of cocaine involved
       (45 grams) is to be used to determine the offense level even
       if the defendant is convicted of a single count charging
       only one of the sales.”

U.S.S.G. § 1B1.3 Commentary, Application Note    3.   Following that

example, this court held that although a defendant pleaded guilty

to charge specifying only 20 lbs of marihuana, the drug quantity

at sentencing should include the actual amount involved in the

entire conspiracy.    United States v. Warters, 885 F.2d 1266, 1273

(5th Cir. 1989) (“[T]he district court is not limited by the

quantity of drugs mentioned in the charging instrument.”).

       Accordingly, the district court did not err by considering

the entire 350 kilograms of cocaine that Burke admitted to as

part of his drug conspiracy, even though 300 of those kilograms

were related to dismissed counts.

III.    Abuse of Position of Trust



                                 10
     Burke argues that the sentencing court erred in applying a

two-level sentence enhancement for abuse of a position of trust

under U.S.S.G. § 3B1.3.

A.   Standard of Review

     The district court’s application of section 3B1.3 is a

sophisticated factual determination that we review for clear

error.   United States v. Partida, 385 F.3d 546, 562 (5th Cir.

2004).

B.   Abuse of a Position of Trust

     Section 3B1.3 provides for a two-level enhancement “if the

defendant abused a position of public or private trust . . . in a

manner that significantly facilitated the commission or

concealment of the offense.”   U.S.S.G.   § 3B1.3.   Burke concedes

that, as an Alderman, he occupied a position of public trust.

However, he objects to the finding that he abused his position in

a manner that significantly facilitated the commission of his

offense.

     The district court ruled that Burke did abuse his position

of trust both because city aldermen appoint the chief of police,

and because Burke used his position to assist the police escort

of drugs through his city. Burke’s usefulness to the purported

drug smugglers and his financial reward for escorting the drugs

through his city, depended upon his position as alderman.    The

district court did not clearly err in assessing him a two-level

increase for abuse of public trust.

                                11
IV.   Booker Error

      With respect to each of his above contentions, Burke also

argues in this court that the district court committed Booker

error by sentencing him in light of facts not directly relevant

to his guilty plea and not found by a jury.

      There is no support in the guidelines or in our case law for

the argument that the court should consider only facts directly

relevant to the elements of the offense charged.    In fact, as

discussed above, the guidelines explicitly advise the sentencing

court to examine all relevant conduct, including facts external

to the count of conviction.

      Of course, if the court itself found those external facts,6

and they had not been admitted by Burke, he could have argued

Booker on appeal.    However, because Burke admitted all the

relevant facts at his plea colloquy, he cannot rely on Booker

here.     The holding of Booker is “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.”     United States v.

Booker, 125 S.Ct. 738, 756 (2005) (emphasis added).    Burke’s

Booker argument is without merit.



      6
        Or, failed to find those facts beyond a reasonable doubt.

                                  12
                           CONCLUSION

     For the foregoing reasons, the sentence of the district court

is

                            AFFIRMED.




                                13
