                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                            MAR 3, 2009
                             No. 08-13759                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 06-00318-CR-RWS-3-1

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

EDWARD TAYLOR,

                                                        Defendant-Appellant.


                       ________________________

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

                             (March 3, 2009)

Before BLACK, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Edward Taylor appeals his 120-month sentence for conspiracy to possess

with intent to distribute marijuana, in violation of 21 U.S.C. § 846, imposed after

being convicted of the conspiracy and other related drug charges. The jury

specifically found the offense involved between 50 and 100 kilograms of

marijuana. At sentencing, however, the district court found, by a preponderance

of the evidence, Taylor’s drug conspiracy involved over 100 kilograms of

marijuana. Based on this drug-quantity finding, and Taylor’s prior drug felony

conviction, the district court imposed a ten-year mandatory minimum sentence for

the conspiracy conviction under 21 U.S.C. § 841(b)(1)(B)(vii).

      On appeal, Taylor argues the district court violated the principles in

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), and United States v. Booker,

125 S. Ct. 738 (2005), by imposing a mandatory minimum ten-year sentence

because it was not based on a quantity of marijuana found by the jury. He notes

because the jury found the quantity was less than 100 kilograms, the jury

convicted him under § 841(b)(1)(C), which dictated a range of zero to 30 years’

imprisonment. Based on Booker and the law in other circuits, he asserts a

defendant may not be subject to “any” mandatory sentence unless it is supported

by facts admitted by the defendant or found by the jury. Further, relying on

authority from other circuits, he criticizes the district court’s manipulation of

                                           2
§ 841 to create a link between the minimum of one subsection and the maximum

of another. He concludes there is no precedent in any circuit justifying the

blending of a minimum sentence from § 841(b)(1)(B) and a maximum from

§ 841(b)(1)(C). Upon review of the sentencing transcript and the presentence

investigation report, and upon consideration of the parties’ briefs, we find no

reversible error with respect to Taylor’s sentence.

        We review a preserved Apprendi/Booker claim on appeal de novo, but

reverse only for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir.

2005). Both parties agree, based on the jury’s drug-quantity finding, Taylor was

subject to the 30-year statutory maximum provided in § 841(b)(1)(C), which

applies to defendants who are convicted of conspiracy to possess with intent to

distribute between 50 and 100 kilograms of marijuana and who have a prior drug

felony conviction. 21 U.S.C. §§ 841(b)(1)(C), 846. Any person convicted of

possessing with intent to distribute 100 kilograms or more of marijuana, and who

has previously been convicted of a felony drug offense, is subject to a term of

imprisonment not less than 10 years and not more than life. 21 U.S.C. § 841(a)(1),

(b)(1)(B)(vii).

      In McMillan v. Pennsylvania, 106 S. Ct. 2411, 2416-17, 2419-20 (1986),

the Supreme Court held a mandatory minimum sentencing act, which mandated a

                                          3
minimum sentence based on judge-found facts by a preponderance of the

evidence, did not violate due process or the Sixth Amendment. Years later in

Apprendi, the Supreme Court held “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

120 S. Ct. at 2362-63. The Court indicated it was not overruling McMillan, but

limited McMillan’s holding to “cases that do not involve the imposition of a

sentence more severe than the statutory maximum for the offense established by

the jury’s verdict.” Id. at 2361 n.13. In Harris v. United States, 122 S. Ct. 2406,

2420 (2002), a decision after Apprendi, the Supreme Court reaffirmed McMillan

by holding that a district court’s increase to a defendant’s minimum sentence

under 18 U.S.C. § 924(c)(1)(A)(ii) based on a judicial finding that the defendant

“brandished” a firearm was not unconstitutional. There, the Court interpreted the

terms “brandished” and “discharged,” as contained in § 924(c)(1)(A), to be

“sentencing factors” to be found by a judge, and not elements to be found by a

jury, even though these findings would increase a defendant’s mandatory-

minimum sentence under the statute. Id. at 2411-2414.

      In Booker, the Supreme Court “reaffirm[ed] [its] holding in Apprendi: Any

fact (other than a prior conviction) which is necessary to support a sentence

                                          4
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.” 125 S. Ct. at 756. The Court held that applying the Sentencing

Guidelines as mandatory to a defendant’s sentence violated the Sixth Amendment

because it required the district court to increase the maximum guideline sentence

authorized by the jury’s findings based on judge-found facts. Id. at 749- 53, 755-

56. In reaching this holding, the Supreme Court relied on its decision in Blakely

v. Washington, 124 S. Ct. 2531(2004), which found a similar state sentencing

scheme unconstitutional. Booker, 125 S. Ct. at 749-51, 755-56. The Blakely

Court held the “‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant.” 124 S. Ct. at 2537. Blakely was

distinguished from McMillan because “McMillan involved a sentencing scheme

that imposed a statutory minimum if a judge found a particular fact.” Id. at 2538.

      Prior to the decision in Booker, but after Apprendi, this Court held the drug

quantities in § 841(b) were sentencing factors as opposed to elements of the single

offense defined in § 841(a). United States v. Sanchez, 269 F.3d 1250, 1265, 1268

(11th Cir. 2001) (en banc), abrogated in part on other grounds, United States v.

Duncan, 400 F.3d 1297, 1308 (11th Cir. 2005). In Sanchez, we stated “in a § 841

                                         5
case, Apprendi does not prohibit a judge from making drug quantity findings and

sentencing a defendant to one of the mandatory minimum sentences in § 841(b),

provided that the mandatory minimum term does not exceed the otherwise

applicable statutory maximum.” Id. at 1269. Thus, when the defendant’s “actual”

or “ultimate” sentence falls at or below the applicable maximum statutory penalty,

there is no Apprendi error and there is no need for the drug quantity to be

submitted to a jury or proven beyond a reasonable doubt. Id. at 1270. Similarly,

in Spero v. United States, 375 F.3d 1285, 1286-87 (11th Cir. 2004), a pre-Booker

habeas corpus case, we concluded the imposition of a mandatory minimum under

§ 841(b) based on a judge-found fact does not violate Apprendi when the

enhanced minimum sentence does not exceed the unenhanced maximum sentence.

      We have recently stated district courts remain bound by statutes designating

mandatory minimum sentences, even after Booker. See United States v.

Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008) (citing Spero, 375 F.3d at

1286).

      It is unusual for a district court to mix and match a statutory minimum from

one subsection in § 841(b) and a statutory maximum from another. Nevertheless,

the district court did not violate Apprendi or Booker by imposing the mandatory

minimum under § 841(b)(1)(B)(vii) for Taylor’s conspiracy conviction based on

                                         6
judge-found facts because Taylor’s ultimate sentence of 120 months’

imprisonment did not exceed the unenhanced 30-year statutory maximum

contained in § 841(b)(1)(C). 21 U.S.C. § 841(b)(1)(C); Sanchez, 269 F.3d at

1268-70. First, the district court’s finding was consistent with Supreme Court

authority defining sentencing findings that need not be found by a jury.

Specifically, both before and after its decision in Apprendi, the Supreme Court

held the imposition of a mandatory minimum based on judge-found facts is

permissible, so long as the sentence does not exceed the applicable statutory

maximum. See Harris, 122 S. Ct. at 2420; McMillan, 106 S. Ct. at 2416-17,

2419-20. Further, Apprendi explicitly stated McMillan remained good law.

Apprendi, 120 S. Ct. at 2361 n.13.

      Second, this Court has explicitly held sentencing courts remain bound by

statutory minimums, even after the Booker holding, Castaing-Sosa, 530 F.3d at

1362, and there is no Apprendi error unless the “actual” or “ultimate” sentence

imposed exceeds the statutory maximum, Sanchez, 269 F.3d at 1270. Here, the

district court’s drug-quantity finding arguably exposed Taylor to both a higher

minimum and maximum, namely, ten years’ imprisonment to life under

§ 841(b)(1)(B), when he was only susceptible to a zero to 30 years’ imprisonment

range under § 841(b)(1)(c). In analyzing whether there has been Apprendi or

                                         7
Booker error, however, our caselaw focuses on the actual sentence imposed in a

§ 841(b) case, rather than the range to which the defendant is exposed. Moreover,

the drug quantities in § 841(b) are sentencing factors, and Apprendi does not

prohibit a judge from making a drug-quantity finding and sentencing a defendant

“to one of the mandatory minimum sentences in § 841(b),” so long as the

mandatory minimum applied does not exceed the applicable statutory maximum.

Sanchez, 269 F.3d at 1269-70. Thus, because Taylor was not sentenced above the

30-year maximum in § 841(b)(1)(C), and the district court remained bound by

statutory minimums post-Booker, there was no Apprendi or Booker error.

      Because the jury determined, with respect to his conspiracy conviction,

Taylor was accountable for between 50 to 100 kilograms of marijuana, Taylor’s

statutory maximum sentence was 30 years’ imprisonment, pursuant to

§ 841(b)(1)(C). The district court did not violate Apprendi or Booker by applying

the 10-year mandatory minimum under § 841(b)(1)(B) based on its own finding by

a preponderance of the evidence that the offense involved more than 100

kilograms of marijuana because Taylor’s 120-month sentence did not exceed the

unenhanced 30-year statutory maximum contained in § 841(b)(1)(C).

Accordingly, we affirm.

      AFFIRMED.

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