                                                                   [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                           May 24, 2005
                                     No. 04-13493
                                                                       THOMAS K. KAHN
                               ________________________                    CLERK

                        D. C. Docket No. 03-00207-CR-002-WS

UNITED STATES OF AMERICA,


                                                                          Plaintiff-Appellee,

                                            versus

JULIE CHARLENE DANIEL,

                                                                       Defendant-Appellant.


                               ________________________

                      Appeal from the United States District Court
                         for the Southern District of Alabama
                            _________________________

                                       (May 24, 2005)

Before CARNES and PRYOR, Circuit Judges, and FORRESTER *, District Judge.

PER CURIAM:


       *
        Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.
      In December 2003, Julie Charlene Daniel pleaded guilty to one count of

conspiracy to possess with intent to distribute more than fifty grams of

methamphetamine, in violation of 21 U.S.C. §§ 846(a)(1), 846, and one count of

possession with intent to distribute approximately one ounce of methamphetamine,

in violation of 21 U.S.C. § 846(a)(1). The district court sentenced Daniel to

seventy months imprisonment and four years of supervised release. Daniel appeals

her sentence on two grounds. She first asserts that the district court erred by

denying her motion to compel the government to file a U.S.S.G. § 5K1.1 motion

for a downward departure due to her substantial assistance. Also, citing Blakely v.

Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), and United States v. Booker,

543 U.S. ___, 125 S. Ct. 738 (2005), Daniel contends that the district court erred

by enhancing her sentence based on facts that were neither found by a jury nor

admitted by her using mandatory guidelines. Because the error of the district court

under Booker was not harmless, we vacate Daniel’s sentence and remand to the

district court for resentencing.

                                   I. BACKGROUND

      Without the benefit of a plea agreement, Daniel pleaded guilty to both drug

counts against her. During the plea colloquy, Daniel indicated that she had chosen

not to enter the plea agreement proposed by the government because she did not



                                           2
want to waive her right to appeal the drug quantity found by the district court.

Daniel did, however, sign and file in open court a document entitled “Factual

Resume” in which she “agree[d] and stipulate[d] that the Government can prove

[the] facts [contained in the factual resume] beyond a reasonable doubt.” The bulk

of that document recounts Daniel’s involvement in a drug conspiracy involving

several other people including her brother. It ends with the following statement:

       The parties agree that the Court will determine the drug amount for
       which the defendant is responsible at the sentencing hearing and that
       the Government can prove [a] drug amount beyond a reasonable doubt
       of greater than 50 grams of methamphetamine. The Government
       contends that the defendant is accountable for from 1.5 to 5 kilograms
       of methamphetamine as relevant conduct.

       During the plea colloquy, Daniel stated that she agreed with the information

contained in the factual resume, with two exceptions: (1) the drug quantities

mentioned to the extent they exceed the minimum statutory amounts referred to in

the indictment and (2) the purity of the methamphetamine to the extent that the

factual resume held her responsible for “ice” methamphetamine, a more pure

version of methamphetamine.1 Also during the plea colloquy, Daniel

acknowledged that the provision in the factual resume where the parties agreed to



       1
         During the sentencing hearing, Daniel changed her position somewhat. She stated that
her only objection to the drugs discussed in the PSR was to the purity of the drugs, not the
quantity. According to Daniel, “there is no objection before the Court as to the findings of the
Probation Office as to the quantity.”

                                                3
have the district court determine the drug quantity acted as a waiver of any

“Apprendi argument with regard to the drug amount.”

      During Daniel’s sentencing hearing, which took place before the Supreme

Court handed down its decision in Booker, she argued that Blakely effectively

invalidated the federal sentencing guidelines. Though recognizing that Blakely

had cast doubt on the continuing viability of the federal sentencing guidelines, the

district court nonetheless rejected Daniel’s argument and chose to apply the

guidelines as written.

      At the close of the sentencing hearing, the district court found by a

preponderance of the evidence that Daniel was responsible for 221.13 grams of

methamphetamine, 2.5 grams of ecstasy, and 31 grams of “ice.” With a marijuana

equivalency of 1,063.25 kilograms, the district court determined that Daniel’s base

offense level was 32. See U.S.S.C. § 2D1.1(c)(4). After applying a two-level

decrease under the guidelines safety-valve provision and a three-level decrease for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, the court set Daniel’s

adjusted offense level at 27. With an offense level of 27 and criminal history

category of I, the guidelines produced a sentencing range of 70 to 87 months

imprisonment. The district court sentenced Daniel to 70 months.




                                          4
                                     II. DISCUSSION

       Daniel makes two arguments on appeal. She first contends that the district

court erred when it denied her motion to compel the government to file a § 5K1.1

motion for a departure based on her substantial assistance. Daniel next argues that

the district court erred under Booker when it enhanced her sentence based on facts

that were neither found by a jury nor admitted by her using mandatory guidelines.

We discuss each argument in turn.

                                    A. Motion to Compel

       Daniel concedes that she never entered into a formal written agreement

under which the government would file a § 5K1.1 motion if she provided

substantial assistance. Nonetheless, she argues that in several conversations with

law enforcement personnel she was promised that, if she cooperated, the

government would recommend a sentence below the guidelines range.2

       Daniel argues that the assistance she provided to the government was

substantial and that the government breached its agreement with her by not filing a

§ 5K1.1 motion. The cooperation that Daniel asserts she provided includes: (1)

testifying about her brother’s drug activities; (2) providing information to the



       2
        Even if we accepted Daniel’s contention that there was a verbal accord, we agree with
the government’s argument that it, like most agreements, would have vested the final decision of
whether to file a substantial assistance motion in the government’s sole discretion.

                                               5
government about a Anna Marsh, a drug dealer, and conducting two controlled

buys with Marsh; (3) preparing to testify against Marsh and Ryan Palmer, another

drug dealer.3

          As we stated in United States v. Nealy, 232 F.3d 825 (11th Cir. 2000):

                 Under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, the government has
          “a power, not a duty, to file a motion when a defendant has substantially
          assisted.” Wade v. United States, 504 U.S. 181, 112 S. Ct. 1840, 1843
          (1992). In Wade, the Supreme Court limited the free exercise of that power
          only to the extent that the government cannot exercise that power, or fail to
          exercise that power, for an unconstitutional motive.

Id. at 831. That means that “judicial review is appropriate when there is an

allegation and a substantial showing that the prosecution refused to file a

substantial assistance motion because of a constitutionally impermissible

motivation, such as race or religion.” United States v. Forney, 9 F.3d 1492,

1502–03 (11th Cir. 1993) (emphasis omitted). Daniel did not allege there was an

unconstitutional motive behind the government’s refusal to file a § 5K1.1 motion.4

As a result, the district court committed no error in refusing to compel the

government to file a § 5K1.1 substantial assistance motion.



          3
              Her testimony against Marsh and Palmer was unnecessary because they both pleaded
guilty.
          4
         The district court conjectured that the government probably would have filed a
substantial assistance motion had Daniel not been caught using illegal drugs after being put on
conditional release pending the resolution of this case. If that were the motive, it is not an
unconstitutional one.

                                                   6
                                   B. Booker Error

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

and the other is statutory. “[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.” United States v. Rodriguez, 398 F.3d 1291,

1297 (11th Cir. 2005). In addition, “[a]s a result of Booker’s remedial holding,

Booker error exists when the district court misapplies the Guidelines by

considering them as binding as opposed to advisory.” United States v. Shelton,

400 F.3d 1325, 1330-31 (11th Cir. 2005). Daniel contends that the district court

committed both constitutional and statutory error.

      Although an argument can be made the Daniel waived her right to appeal

any constitutional error, we need not address that issue. It is clear that Daniel did

not waive her right to appeal the Booker statutory error. By sentencing Daniel

under a mandatory guidelines scheme, the district court committed statutory error

under Booker. See id.

      Because Daniel preserved her Booker objection, we review for harmless

error. See United States v. Mathenia, ___ F.3d ___, No. 04-15250, slip at *5 (11th

Cir. May ___, 2005). As we stated in Mathenia:



                                           7
      A non-constitutional 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 *5-6 (marks and citations omitted). The government failed to meet its burden

of showing that the Booker statutory error was harmless.

      The district court did not say that it would have given the same sentence

regardless of whether the guidelines were mandatory or advisory. The district

court, instead, stated that “the sentence imposed addresses the seriousness of the

offense and the sentencing objectives of punishment, deterrence, and

incapacitation.” That statement does little to inform our judgment about what the

district court would have done had it treated the guidelines as advisory rather than

mandatory. The district court may very well have found that a lower sentence

would also address the same concerns.

      The comment of the district court that “if the guidelines are determined to be

unconstitutional, we’ll probably be back here for a resentencing in some form or

fashion, or there will be some potential adjustment that will need to be made as a

result of . . . any decision that would undermine the guidelines as we know them

today” suggests that the district court might be amenable to imposing a different




                                          8
sentence under an advisory guidelines regime.5 In any event, the government has

failed to carry its burden of demonstrating “with fair assurance that the sentence

was not substantially swayed by the error.” Mathenia, ___ F.3d at ___. We find,

therefore, that the Booker statutory error committed by the district court was not

harmless.

                                    III. CONCLUSION

       For the foregoing reasons, Daniel’s sentence is VACATED and the case is

REMANDED for resentencing in accord with the Booker decision.




       5
         On remand, the district court must calculate the proper Guideline range, which includes
again making findings regarding the quantity and quality of the methamphetamine possessed by
Daniel or adopting the previous findings, and then the district court must apply that Guideline
range in an advisory manner. See United States v. Crawford, F.3d , No. 03-15136 (11th
Cir. May 2, 2005).


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