                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              August 31, 2005
                             No. 04-15923                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 99-00003-CR-WPD

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,


     versus


LATRAVIS GALLASHAW,
a.k.a. Trav,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________
                             (August 31, 2005)


Before BIRCH, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
      Latravis Gallashaw appeals his sentences, amounting to seventy years of

imprisonment in total, imposed after he was found guilty by the jury and sentenced

on charges of: (1) conspiracy to distribute cocaine and marijuana, 21 U.S.C. § 846

(Count One); (2) possession with intent to distribute marijuana, 21 U.S.C. §

841(a)(1) (Count Ten); and (3) possession with intent to distribute cocaine, 21

U.S.C. § 841(a)(1) (Counts Four and Eleven). Upon review of the record and the

arguments of the parties, we VACATE Gallashaw’s sentence and REMAND for

resentencing.

                                I. BACKGROUND

      A federal superceding indictment alleged that Corey Smith, Antonio Allen,

Eric Stokes, Antonio Godfrey, Kettrick Major, and Latravis Gallashaw had

committed various narcotics-related offenses. After several plea agreements,

Gallashaw was charged with: (1) conspiracy to distribute cocaine and marijuana,

in violation of 21 U.S.C. § 846 (Count One); (2) possession with intent to

distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (Counts Six, Nine, and

Ten); and (3) possession with intent to distribute cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2 (Counts Four and Eleven). Count One did not

allege a quantity of cocaine or marijuana, and Counts Four, Ten, and Eleven did

not allege any specific quantity of controlled substance.



                                          2
      A jury convicted Gallashaw of Counts One, Four, Ten, and Eleven. The

district court sentenced Gallashaw to life imprisonment as to Counts One and

Eleven, forty years as to Count Four to run concurrently with Counts One and

Eleven, five years as to Count Ten to run concurrently with all other counts. In

addition, the district court imposed sixty months of supervised release as to Counts

One and Eleven, four years of supervised release as to Count Four to run

concurrently with Counts One and Eleven, and two years of supervised release as

to Count Ten to run concurrently with all other counts. [R2-632 at 3-4.]

      On appeal, we vacated and remanded Gallashaw’s sentences for Counts One,

Four, Ten, and Eleven. United States v. Allen, 302 F.3d 1260, 1280 (11th Cir.

2002). As for Gallashaw’s sentence for Count One, we remanded the case with

instructions that the government decide whether to (1) resentence Gallashaw based

on a maximum sentence of five years, or (2) retry one or more of the defendants

with a new trial on Count One. Id. As for Gallashaw’s sentences for Counts Four,

Ten, and Eleven, we held that they violated Apprendi v. New Jersey, 530 U.S. 466,

490, 120 S. Ct. 2348, 2362-63 (2000), and we vacated those sentences and

remanded them for resentencing. Id. at 1278-80. The government elected to have

the district court resentence the defendants, including Gallashaw, on Count One.

[R30 at 3.]



                                          3
      Prior to Gallashaw’s resentencing, the Supreme Court decided Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and Gallashaw filed written

objections to the PSI based on the case. Gallashaw argued that Blakely barred the

district court from enhancing his sentence for firearm possession or managerial

role and required that the district court determine his base offense level using only

the quantity of drugs actually seized. [R2-1182 at 7-8.] Citing United States v.

Reese, 382 F.3d 1308 (11th Cir. 2004), vacated by 125 S. Ct. 1089 (2005), the

government responded that Blakely was not applicable to the federal sentencing

guidelines in the Eleventh Circuit. [R2-1183 ¶ 4, at 2.]

      At resentencing, Gallashaw argued that, under Blakely, any enhancement

was deemed an element of the offense that had to be proved beyond a reasonable

doubt. [R30 at 9.] Additionally, Gallashaw contended that the district court

“should only attribute the amount of cocaine as cocaine powder whether it was

cocaine base or cocaine powder,” R30 at 10, and that the district court should apply

a reasonable doubt standard to determine the amount of cocaine for which he was

responsible [id. at 26]. Citing Reese, the district court concluded that Blakely did

not apply to the sentencing guidelines, and it overruled Gallashaw’s objections. Id.

at 26. The court noted that “if the United States Supreme Court attributes Blakely

to [the] Federal Sentencing Guidelines, we may be back here on a third round of



                                           4
sentencing.” Id.

          At the continuation of the sentencing hearing, Gallashaw argued that, under

Blakely, the government should not be able to enhance Gallashaw’s sentence

because he acted as a leader and organizer or because he possessed a firearm in

relation to his drug offenses unless the government so alleged in the indictment and

submitted those issues to the jury. [R31 at 25-26.] Again, citing Reese, the district

court overruled Gallashaw’s objections. [Id. at 27.] The district court further

stated:

          And I will tell you right now my experience is that the Blakely
          opinion, if it’s given retroactive application, is going to affect a
          large percentage of cases. You yourself in this case have
          argued that your interpretation of Blakely is that Mr. Gallashaw
          should start off at a level 12.
                 Now, I will tell you right now I don’t agree with that
          interpretation, but if Blakely is given application to [the] Federal
          Sentencing Guidelines and if your interpretation is correct, then Mr.
          Gallashaw is done on this sentence. And I just wonder if Justice
          Stevens would be surprised that someone who got a life sentence for
          this particular crime would have served more time in jail by now than
          a Blakely driven guidelines would require.

Id. at 28. Additionally, the district court stated that “Gallashaw’s hope in this case

has got to be that the United States Supreme Court extends Blakely to his case and

that he gets a windfall.” Id. at 34.

          The district court found that Gallashaw played a supervisory role in the

organization and imposed a three-level enhancement. [Id. at 36.] Additionally, it

                                             5
determined that Gallashaw was responsible for 150 kilograms of cocaine based on

trial testimony that five to seven kilograms per week were distributed by the John

Doe Organization from mid-1997 through January 1999, and on the fact that

Gallashaw, as a second-in-command, was responsible for the amount of drugs that

went through the organization as a whole. [Id. at 37-38.] Finally, the district court

imposed a two-level enhancement for possession of a firearm. [Id. at 38.] Based

on its findings, the district court imposed sentences of five years of imprisonment

as to Count One, twenty years as to Count Four, five years as to Count Ten, and

forty years as to Count Eleven, to run consecutively, for a total of seventy years of

imprisonment. [Id. at 39-40.] The district court also imposed five years of

supervised release on Count Eleven, and three years on other remaining counts, to

run concurrently. [Id. at 40.]

                                       II. DISCUSSION

       On appeal, Gallashaw first argues that the district court violated his Sixth

Amendment rights under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738

(2005), when it resentenced him under a mandatory guidelines scheme.1


       1
          In his reply brief, Gallashaw additionally argues that he should be resentenced before a
different district judge because the district judge stated that he would receive a “windfall” if
Blakely was found to be applicable to the sentencing guidelines. Because Gallashaw raised this
argument for the first time in his reply brief, we decline to consider it here. See United States v.
Fiallo-Jacome, 874 F.2d 1479, 1481 (11th Cir. 1989) (“An appellant in a criminal case may not
raise an issue for the first time in a reply appellate brief.”)

                                                  6
      Because Gallashaw objected under Blakely to the enhancements to his

sentence in district court, we review his sentence de novo. We will remand his

case for resentencing unless no error occurred, or the error was harmless. United

States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam).

      While Gallashaw’s case was pending on appeal, the Supreme Court issued

its decision in Booker. In Booker, the Supreme Court held “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.”

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.) (citing Booker, __

U.S. at __, 125 S. Ct. 738, 749-56), cert. denied 125 S. Ct. 2935 (2005). Based on

the Supreme Court’s holding, we have found that a district court could have

committed two types of Booker errors. A district court committed the first type,

constitutional Booker error, if it “use[d] . . . extra-verdict enhancements to reach a

guidelines result that is binding on the sentencing judge; the error is in the

mandatory nature of the guidelines once the guidelines range has been

determined.” United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005)

(per curiam) (citations and internal quotations omitted). A district court committed

the second type, statutory Booker error, if it sentenced a defendant “under a



                                           7
mandatory guidelines scheme, even in the absence of a Sixth Amendment

enhancement violation.” Id. (citations and internal quotations omitted).

      We apply different harmless error standards to Booker constitutional and

statutory errors. A Booker constitutional error is deemed harmless if “the

government can show, beyond a reasonable doubt, that the error did not contribute

to the defendant’s ultimate sentence.” Id. at 1291. On the other hand, a Booker

statutory 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.” Id. at

1292 (citation and internal quotations omitted). The government carries the burden

of showing that any Booker error was harmless. See Paz, 405 F.3d at 948.

      As the government concedes, the district court committed Booker

constitutional error in this case by resentencing Gallashaw on the basis of facts that

he did not admit and that were not proved to a jury beyond a reasonable doubt.

The district court found by a preponderance of the evidence: (1) the drug amounts

involved in the offense; (2) that Gallashaw played a leadership role; and (3) that

Gallashaw possessed a firearm in connection with drug offenses. The jury was not

asked to make these findings, and Gallashaw did not admit to them. Thus, because



                                           8
Gallashaw’s sentence was enhanced, under a mandatory guidelines system, based

facts found by a judge and not admitted by Gallashaw, Gallashaw’s Sixth

Amendment right to a trial by jury was violated. See Paz, 405 F.3d at 948.

      The government has not met its burden of proving that the constitutional

error was harmless beyond a reasonable doubt, i.e., that the error did not contribute

to the defendant’s ultimate sentence. See Mathenia, 409 F.3d at 1291. On the one

hand, as the government points out, the district court (1) sentenced Gallashaw to

the maximum permissible sentence on each count, even though Gallashaw

apologized for his involvement in the crime and stated that he had cooperated with

prosecutors [R39 at 31, 39; Allen, 302 F.3d at 1279, 1280 (stating the maximum

sentences allowed for Counts One, Four, Ten and Eleven)]; (2) ruled against a

downward departure [R34 at 39]; (3) characterized the possible benefit to

Gallashaw if Blakely were applied to the federal sentencing guidelines as a

“windfall,” R31 at 34; (4) imposed a three-level enhancement for role, but noted

that “probably a four-level enhancement was appropriate,” id. at 36; (5)

commented on the violence involved in the conspiracy, [id. at 38]; and (6)

expressed no remorse at having imposed a life sentence at Gallashaw’s original

sentencing and, at resentencing, imposed sentences totaling seventy years of

imprisonment [id. at 39-40]. However, the district court imposed no alternate



                                          9
sentence in the event Blakely was applied to the federal sentencing guidelines, and

to the contrary, stated that “if the United States Supreme Court attributes Blakely

to [the] Federal Sentencing Guidelines, we may be back here on a third round of

sentencing.” R30 at 26. Accordingly, we conclude that the government has failed

to demonstrate that district court’s constitutional Booker error was harmless

beyond a reasonable doubt. Thus, we vacate and remand Gallashaw’s sentence for

resentencing.2

                                     III. CONCLUSION

       In this appeal, Gallashaw challenged his sentences for various drug related

offenses. Because we conclude that the district court committed constitutional

Booker error in sentencing Gallashaw, and that the error was not harmless, we

VACATE Gallashaw’s sentences and REMAND for resentencing consistent with

this opinion.



       2
          In his appellate brief, Gallashaw contends that, after the case is remanded for
resentencing, the district court should determine the applicable guidelines range using only facts
admitted by Gallashaw or proved beyond a reasonable doubt. As we recognized in Rodriguez,
however, the use of extra-verdict enhancements “remains a constitutional part of the guidelines
sentencing in the post-Booker era.” 398 F.3d at 1301. Accordingly, a district court tasked with
resentencing a defendant in light of Booker is “faced with . . . exactly the same factual issues that
it has already resolved, and it [is] required to at least consider exactly the same guideline
enhancement provisions it has already applied. No guidelines provisions have changed in any
way. All that has changed is that the guidelines range is now advisory. . . .” Id. at 1300-01.
         Additionally, because we remand Gallashaw’s sentences due to the district court’s
constitutional Booker error, we need not address Gallashaw’s argument regarding any statutory
Booker error.

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