                                                                     [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT         FILED
                            ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                        June 24, 2005
                                   No. 04-14383
                                                                     THOMAS K. KAHN
                             ________________________                     CLERK

                         D.C. Docket No. 03-00059-CR-MCR

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

       versus

TARA L. MCGAVAN,
                                                         Defendant-Appellant.

                            __________________________

                 Appeal from the United States District Court for the
                            Northern District of Florida
                           _________________________

                                     (June 24, 2005)

Before BLACK and HULL, Circuit Judges, and HODGES*, District Judge.

PER CURIAM:




       *
         Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
      After pleading guilty, Tara L. McGavan appeals her concurrent 24-month

sentences for: (1) conspiracy to distribute, dispense and possess with intent to

distribute and dispense oxycodone, hydrocodone, fentanyl, morphine, methadone

and alprazolam, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (D), and 846;

and (2) unlawfully dispensing oxycodone, in violation of 21 U.S.C. §

841(b)(1)(C). After review and oral argument, we affirm.

                                I. BACKGROUND

A.    Offense Conduct

      The FBI and Bay County, Florida, Sheriff’s Office conducted an

investigation into the medical practice of Dr. Freddy J. Williams. The results of

the investigation revealed that Dr. Williams provided Defendant McGavan and

other patients with prescription medication (“oxycodone”) after only a cursory

medical examination. Dr. Williams did not request the patients’ medical records,

took no x-rays, and did not conduct any tests to determine the patients’ medical

needs. Moreover, Dr. Williams enrolled Defendant McGavan into the Patient

Assistance Program so that she could receive oxycodone at no cost to her.

Defendant McGavan, who was previously addicted to heroin, became addicted to

oxycodone.




                                          2
      McGavan shared a residence with another patient of Dr. Williams’s, Duane

Oxenham. After Oxenham arranged for Greg and Sommer Miller to become

patients of Dr. Williams’s, the Millers became addicted to oxycodone. Due to the

Millers’ heavy addiction, Defendant McGavan and Oxenham determined that they

should store the Millers’ oxycodone in a lock box at McGavan and Oxhenham’s

residence. By doing this, they could control how much pain medication was

distributed to the Millers and prevent the Millers from overdosing on oxycodone.

      A federal grand jury charged McGavan, in a 96-count indictment, with

conspiracy to defraud the United States, in violation of 18 U.S.C. §§ 371 and 1349

(count 1); frauds and swindles, in violation of 18 U.S.C. § 1341 (counts 2-16);

health care fraud, in violation of 18 U.S.C. § 1347 (count 17); fraud by wire, radio,

or television, in violation of 18 U.S.C. § 1343 (counts 18-32); conspiracy to

distribute, dispense and possess with intent to distribute and dispense oxycodone,

hydrocodone, fentanyl, morphine, methadone and alprazolam, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(C), (D), and 846, (count 33); selling, distributing, or

dispensing controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)

& (D), and 846 (counts 65, 68, 70-71, 77, 83-84); and knowingly distributing

oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), and (b)(1)(C) (count 93).

B.    McGavan’s Guilty Plea

                                          3
      Prior to Defendant McGavan’s guilty plea, the government submitted a

written statement of facts, wherein it stated that McGavan was responsible for

25,700 pills of oxycodone. At her change of plea hearing, McGavan pled guilty,

pursuant to a plea agreement, to counts 33 and 93, and the government agreed to

drop all the remaining charges. During the plea colloquy, McGavan admitted that

the government was correct in stating that she was responsible for 25,700 pills.

However, no mention was made as to the dosage of any of the 25,700 pills.

      In the PSR, the probation officer calculated the drug quantity McGavan

would be responsible for based on the prescription records from Dr. Williams’

office issued to her and to the Millers. Based on the number of pills and dosage

amounts reportedly shown in the prescription records, the probation officer

concluded that McGavan was responsible for 36,738 pills of oxycodone with the

following dosage levels:

      Pills prescribed to McGavan
      1) 13,220 pills of oxycodone at the 5 mg quantity. These pills weigh
      100 mg per unit. This calculates to 1,322 grams of oxycodone.
      2) 2,304 pills of oxycodone at the 40 mg quantity. These pills weigh
      135 mg per unit. This calculates to 311.04 grams of oxycodone.
      3) 12,434 pills of oxycodone at the 80 mg quantity. These pills weigh
      280 mg per unit. This calculates to 490 grams of oxycodone.
      Pills prescribed to the Millers
      1) 4,900 pills of oxycodone at the 5 mg quantity. These pills weigh
      100 mg per unit. This calculates to 490 grams of oxycodone.



                                         4
      2) 390 pills of oxycodone at the 40 mg quantity. These pills weigh
      135 mg per unit. This calculates to 52.65 grams of oxycodone.
      3) 3,430 pills of oxycodone at the 80 mg quantity. These pills weigh
      280 mg per unit. This calculates to 960.4 grams of oxycodone.
      4) 60 pills of oxycodone at the 160 mg quantity. These pills weigh
      520 mg per unit. This calculates to 31.2 grams of oxycodone.

      The defendant was held accountable for a total of 6,648.81 grams of

oxycodone. According to the 2002 Guidelines, one gram of oxycodone equals 500

grams of marijuana. Therefore, the defendant was held responsible for 3,324.41

kilograms of marijuana. Based on this drug amount, the PSI calculated a base

offense level of 34, and with a three level reduction for acceptance of

responsibility, McGavan’s total offense level was 31. With a criminal history

category of III, McGavan’s guideline range was 135-168 months’ imprisonment.

      McGavan objected to the PSR on the grounds that pursuant to Blakely v.

Washington, 124 S. Ct. 2531 (2004), a jury, not a judge, was responsible for

determining drug quantities, and that she was thus not admitting to the number of

pills or dosages. Specifically, McGavan objected as follows:

      In calculating the base offense level in the Pre-Sentence Investigation
      Report, the Defendant objects to both the number of pills she is charged
      with as well as the dosage amounts. The Supreme Court recently held
      that a defendant’s maximum sentence must be based solely on the basis
      of the facts reflected in a jury verdict or admitted by the defendant. See
      Blakely v. Washington, 124 S. Ct. 2531. In this case, there are not jury
      findings relating to the Defendant and the Defendant has only admitted
      to an amount of 25,700 pills of unknown dosage as specified in the

                                          5
      Statement of Facts supporting her Plea and Cooperation Agreement, as
      opposed to the 36,738 pills with specific dosages listed in the Pre-
      Sentence Report. No admission regarding the weight or milligrams of
      any pills was made nor can one be presumed or attributed.

District Court Docket #116.1

C.    Sentencing

      The district court concluded that Blakely did not apply to the federal

Sentencing Guidelines and “adopt[ed] the factual findings and guideline

application in the Presentence Report.” However, the district court granted the

government’s § 5K1.1 motion, finding that McGavan provided substantial

assistance, and determined that McGavan was entitled to a departure below the

low end of the guidelines. The district court noted that McGavan’s guideline

range was 135-168 months’ imprisonment, but that her substantial assistance

warranted a 24-month sentence on each count to run concurrently. After

sentencing McGavan to 24 months’ imprisonment, the district court stated:




      1
       The probation officer summarized the objection in the PSR as follows:
      Charles Williams and Rhonda S. Clyatt, appointed counsel, have made one objection
      to the presentence report in a motion filed on July 27, 2004. The objection relates to
      the drug weight accountability for the defendant. The defense contends the defendant
      admitted to only 25,700 pills of an unknown dosage. The presentence report lists
      36,738 pills at various specified pill weights. The defense states that in light of
      Blakely v. Washington, 124 S. Ct. 2531, the defendant should not be held
      accountable for the weights established in the presentence report because those facts
      were not presented to or established by a jury.

                                                6
      Although significantly below the minimum of the calculated sentencing
      range, I do find that this term of imprisonment is sufficient to punish
      you for your conduct, Ms. McGavan, as well as to deter others who
      might engage in similar-type conduct. I have carefully considered the
      factors set out in 18 U.S.C. § 3553A including the applicable guidelines
      and policy statements issued by the Sentencing Commission.
             One of the reasons I’ve sentenced you to 24 months is so that you
      can participate in a residential drug abuse treatment program that is
      offered in the Bureau of Prisons, and I do want you to participate in that.
      I do find that you should be eligible for that based on your history, your
      substance abuse history, and I do hope that you will participate fully in
      that program, take it seriously and if you do, I do believe you will
      benefit from that.

McGavan appeals.

                                  II. DISCUSSION

      McGavan argues that the district court erred under United States v. Booker,

125 S. Ct. 738 (2005), when it enhanced her sentence based on facts that were not

charged in the indictment and that she did not admit. Specifically, McGavan

points out that she did not admit to either the additional pills of oxycodone or to

the dosage of any of the pills.

      In Booker, the Supreme Court concluded that Blakely applied to the

Sentencing Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th

Cir. 2005), cert. petition filed, 73 USLW 3531 (Feb. 23, 2005) (No. 04-1148).

Under Booker, “there are two kinds of sentencing errors: one is constitutional and

the other is statutory.” United States v. Dacus, 408 F.3d 686, 688 (11th Cir. 2005).

                                          7
“[T]he 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.” Rodriguez, 398 F.3d at 1298. The statutory error occurs when the

district court sentences a defendant “under a mandatory Guidelines scheme, even

in the absence of a Sixth Amendment enhancement violation.” United States v.

Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

       We first conclude that based on the prescription records the district court

correctly determined both drug quantity and guideline range. Nonetheless,

McGavan’s Sixth Amendment rights were violated because McGavan’s sentence

was enhanced, under a mandatory guideline system, based on facts neither found

by a jury nor admitted by her.2 Specifically, the district court held McGavan

responsible for 36,738 pills of oxycodone of various dosages even though

McGavan admitted to only 25,700 pills of oxycodone of an unspecified dosage.



       2
         As noted earlier, the number of pills and their respective dosages were obtained from
available prescription records from Dr. Williams’s office. The defendant does not contend, either
before the district court or this Court, that the PSR inaccurately described the prescription records
obtained from Dr. Williams’s office. Furthermore, the defendant does not dispute the PSR’s
conversion of oxycodone into an equivalent amount of marijuana.
        Nonetheless, the defendant consistently made it clear that she was not admitting to those
amounts. While the amounts in the prescription records were sufficient to sustain the district court’s
fact findings as to drug quantity, McGavan still did not admit those amounts, and thus there remains
a Sixth Amendment violation.

                                                  8
The Sixth Amendment violation stemmed not from the district court’s extra-

verdict enhancements, but from the district court’s use of those extra-verdict

enhancements in sentencing McGavan in a mandatory guidelines scheme.

Rodriguez, 398 F.3d at 1301.

      Because McGavan properly preserved her Booker claim in the district court

by objecting based on Blakely, we review the defendant’s Booker claim de novo

and determine whether the error is harmless. See United States v. Paz, 405 F.3d

946, 948 (11th Cir. 2005). “To find harmless error, we must determine that the

error did not affect the substantial rights of the parties.” Id. (quoting United States

v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998)). “A constitutional error, such as

a Booker error, must be disregarded as not affecting substantial rights if the error

is harmless beyond a reasonable doubt.” Id. (internal quotation marks,

punctuation and citation omitted).

      After reviewing the record, we conclude that the government has met its

burden of showing that the Booker constitutional error was harmless. See Paz,

405 F.3d 948-49. In Paz, which was a Booker-constitutional-error case, we

explained that harmless error analysis puts the burden on the government to show

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

sentence obtained.” Id. at 948 (quotation marks, punctuation, and citation

                                           9
omitted). Thus, the government must show beyond a reasonable doubt “that the

mandatory, as opposed to the advisory, application of the guidelines did not

contribute to the defendant’s sentence.” United States v. Davis, 407 F.3d 1269,

1271 (11th Cir. 2005).

       In this case, the district court properly: (1) held McGavan responsible for

36,738 pills of oxycodone of specified dosages; and (2) calculated McGavan’s

guideline range. The district court, in selecting a 24-month sentence, specifically

considered the sentencing factors in § 3553(a), and determined that a 24-month

sentence was warranted so that McGavan could participate in drug treatment

programs while in prison.1 Simply put, because the district court granted the

government’s § 5K1.1 motion, it was not constrained by the mandatory guideline

range when it selected a 24-month sentence. Moreover, the magnitude of the

downward departure and the reason the district court chose McGavan’s particular



       1
         In Davis, 407 F.3d at 1271, this Court concluded that “the sentencing court could not
permissibly consider the sentencing factors announced in 18 U.S.C. § 3553(a) when exercising is
discretion” under § 5K1.1. However, in United States v. Luiz, 102 F.3d 466, 469-70 (11th Cir. 1996),
this Court permitted the sentencing court, when exercising its discretion under § 5K1.1, to consider
the fact that the defendants were charged “leniently” by the government when compared to their
offense conduct described in the PSI. One of the factors listed under 18 U.S.C. § 3553(a) is “the
nature and circumstances of the offense.” 18 U.S.C. § 3553(a)(1). The decision to charge a
defendant leniently could certainly be considered within the ambit of “the nature and circumstances
of the offense.” We need not resolve any arguable tension between Davis and Luiz because it is
clear that under Booker a district court may now consider the factors in § 3553(a) and that the
Booker error in this case was harmless beyond a reasonable doubt.

                                                10
sentence demonstrate that any Booker error did not affect the ultimate sentence.

Thus, we easily conclude that the government has established that the Booker-

error in this case was harmless beyond a reasonable doubt.

      AFFIRMED.




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