                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                         FOR THE ELEVENTH CIRCUIT
                                                    U.S. COURT OF APPEALS
                        _____________________________ ELEVENTH CIRCUIT
                                                                  July 25, 2005
                                 No. 04-15343                  THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                        _____________________________

                         D. C. Docket No. 04-00066-CR-4

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                                       versus

ANTHONY BIGHAM,

                                                Defendant-Appellant.

                         ___________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        ___________________________

                                  (July 25, 2005)

Before EDMONDSON, Chief Judge, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      Quran Anthony Bigham appeals his 70-month sentence, pursuant to his

guilty plea, for distribution of 5 or more grams of crack cocaine, in violation of 21
U.S.C. § 841(a)(1). Bigham argues that the district court violated Blakely v.

Washington, 124 S.Ct. 2531 (2004), when it sentenced him based on a drug

quantity that he did not admit and that was not proved to a jury beyond a

reasonable doubt. The government concedes that error exists under United States

v. Booker, 125 S.Ct. 738 (2005). We agree; we vacate Bigham’s sentence and

remand for resentencing consistent with Booker.

      Bigham was indicted for two counts of distribution of 5 or more grams of

crack cocaine based on two transactions: the first occurred on 4 August 2003

(Count One) and the second occurred on 5 August 2003 (Count Two). Bigham

pled guilty to Count One. At the plea colloquy, Bigham admitted to the

government’s fact proffer on Count One: that the weight of the crack cocaine in

the first transaction was 24.5 grams. But the government made no fact proffer on

Count Two.

      The presentence investigation report (PSI) attributed to Bigham a total drug

quantity of 72.2 grams of crack cocaine: 24.5 grams for the first transaction and

47.7 grams for the second transaction. The PSI indicates that Bigham admitted to

participating in the second transaction; but the PSI does not show that Bigham

admitted to the drug quantity involved in the second transaction. The PSI

assigned a base offense level of 32, under U.S.S.G. § 2D1.1(c)(4), a 2-level “safety

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valve” reduction, § 5C1.2, and a 3-level reduction for acceptance of responsibility,

§ 3E1.1(a), (b). Combined with a criminal history category of I, the PSI assigned

Bigham a guideline sentencing range of 70 to 87 months’ imprisonment.

      Based on Blakely, Bigham objected to the PSI’s calculation of total drug

weight. He argued that he could be held accountable only for the drugs in Count

One, the only count to which he pled guilty, and that the facts of Count 2 neither

were admitted by him nor found by a jury. The district court overruled Bigham’s

Blakely objection, stating that “in Blakely the Supreme Court did not specifically

strike the guidelines . . . . But until a change is made, then I intend to continue

sentencing as we’ve done in the past. If as a result of a decision by the Supreme

Court it is necessary to bring defendants in and resentence them, then that’s what

I’ll do.” The district court then adopted the PSI’s calculations and sentenced

Bigham to 70 months’ imprisonment.

      In Booker, the Supreme Court held that Blakely applied to the Sentencing

Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir. 2005),

petition for cert. denied, No. 04-1148 (U.S. June 20, 2005). Under Booker, “there

are two types of sentencing errors: one is constitutional and the other is statutory.”

United States v. Dacus, 408 F.3d 686, 688 (11th Cir. 2005). “[T]he Sixth

Amendment right to trial by jury is violated where under a mandatory guidelines

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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).

      Bigham properly preserved his Blakely/Booker constitutional objection in

the district court. See United States v. Dowling, 403 F.3d 1242, 1245 (11th Cir.

2005). We review this issue de novo; but we will not reverse the district court if

the government shows that the error was harmless beyond a reasonable doubt. See

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

      Bigham’s sentence was enhanced, under a mandatory guidelines system,

based on facts found by the judge and not admitted by Bigham: Booker indicates

that Bigham’s Sixth Amendment right to trial by jury was violated. See United

States v. Davis, 407 F.3d 1269, 1270 (11th Cir. 2005). And the government

concedes error: the government thus does not attempt to show “that the mandatory,

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

[Bigham]’s sentence.” Id. at 1271. The district court treated the guidelines as

mandatory: it made no statement indicating that it would have given the same

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sentence regardless of whether the guidelines were advisory or mandatory. See id.

(no harmless error beyond a reasonable doubt where “[w]e simply do not know

what the sentencing court would have done had it understood the guidelines to be

advisory rather than mandatory, and had properly considered the factors in 18

U.S.C. § 3553(a)”). Bigham must be resentenced under the advisory guidelines

system: on remand, the district court, “while not bound to apply the Guidelines,

must consult those guidelines and take them into account when sentencing.” Paz,

405 F.3d at 949 (quoting Booker, 125 S.Ct. at 767).

      VACATED and REMANDED.




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