                                                                [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                          FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                            ________________________ ELEVENTH CIRCUIT
                                                                   MAY 20, 2005
                                  No. 04-15562                   THOMAS K. KAHN
                              Non-Argument Calendar                  CLERK
                            ________________________

                         D. C. Docket No. 04-80058-CR-JCP

UNITED STATES OF AMERICA,
                                                               Plaintiff-Appellee,

      versus

LUCIO CUEVAS NAVA,
                                                               Defendant-Appellant.

                            ________________________

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

                                   (May 20, 2005)


Before DUBINA, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

      Appellant Lucio Cuevas Nava appeals his 18-month sentence for possession

with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C). On appeal, Nava argues that his sentence, which was based upon a
finding of a drug quantity not charged in the indictment but which was admitted to

by Nava, is unconstitutional in light of Blakely v. Washington, 542 U.S. __, 124

S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. ___,

125 S.Ct. 738, 749, 160 L.Ed.2d 621 (2005), and that we should remand to allow

the district court to sentence him using the Federal Sentencing Guidelines in an

advisory, rather than mandatory, manner.

      Because Nava raised a constitutional objection to his sentence based on

Blakely before the district court, we review this constitutional issue de novo, but

will reverse only for a harmful error. See United States v. Paz, ___ F.3d ___, No.

04-14829, (11th Cir. Apr. 5, 2005). A constitutional error is harmless if “it is clear

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

sentence obtained.” Id. at ___ (quotation and alteration omitted). The government

bears the burden to show that any error was harmless. Id.

      In Apprendi v. New Jersey, the Supreme Court held that “[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.” 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435

(2000). In Blakely, the Court held that “the ‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the



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facts reflected in the jury verdict or admitted by the defendant. . . . In other words,

the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose

after finding additional facts, but the maximum he may impose without any

additional findings.” 542 U.S. at ___, 124 S.Ct. at 2537. Applying these principles,

the Court concluded that Blakely’s sentence—enhanced under the Washington state

guidelines based on the sentencing court’s additional finding by a preponderance of

the evidence that Blakely committed his kidnapping offense with deliberate

cruelty—violated the Sixth Amendment. Id. at ___, 124 S.Ct. at 2534-38. In a

footnote, however, the Court noted that “[t]he Federal Guidelines are not before us,

and we express no opinion on them.” Id. at ___ n.9, 124 S.Ct. at 2538 n.9.

      While the instant case was pending on appeal, the Supreme Court issued its

decision in Booker, finding “no distinction of constitutional significance between

the Federal Sentencing Guidelines and the Washington procedures at issue” in

Blakely. Booker, 543 U.S. at ___, 125 S.Ct. at 749. Resolving the constitutional

question left open in Blakely, the Court held that the mandatory nature of the

Federal Guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial. Id. at ___,125 S.Ct. at 749-51. In extending its

holding in Blakely to the Guidelines, the Court explicitly reaffirmed its rationale in

Apprendi that “[a]ny fact (other than a prior conviction) which is necessary to



                                            3
support a sentence 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.” Id. at ___, 125 S.Ct. at 756.

      In a second and separate majority opinion, the Court in Booker concluded

that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of

1984, the appropriate remedy was to “excise” two specific sections—18 U.S.C.

§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)

and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de

novo review of departures from the applicable guideline range)—thereby effectively

rendering the Sentencing Guidelines advisory only. Id. at ___, 125 S.Ct. at 764.

The Court indicated that both its “Sixth Amendment holding and . . . remedial

interpretation of the Sentencing Act” must be applied to “all cases on direct

review.” Id. at ___, 125 S.Ct. at 769.

      In United States v. Rodriguez, applying a plain-error analysis, we explained

that the error in Booker was “not that there were extra-verdict enhancements –

enhancements based on facts found by the judge that were not admitted by the

defendant or established by the jury verdict – that led to an increase in the

defendant’s sentence.” 398 F.3d 1291, 1300 (11th Cir.), petition for cert. filed,

(U.S. Feb. 23, 2005) (No. 04-1148). Rather, we explained that “[t]he error is that



                                           4
there were extra-verdict enhancements used in a mandatory guidelines system.” Id.

      In United States v. Shelton, applying a plain-error analysis, we held that there

was no Sixth Amendment violation under Booker because the defendant’s

sentencing enhancements were based on either prior convictions or facts that were

admitted by the defendant. 400 F.3d 1325, 1329-30 (11th Cir. 2005). Nevertheless,

we held that even when there is no “Sixth Amendment enhancement violation,”

there is still a “Booker error . . . when the district court misapplies the Guidelines by

considering them as binding as opposed to advisory.” Id. at 1330-31.

      In the present case, we conclude, after reviewing the record, that there was no

Sixth Amendment violation when the district court sentenced Nava based on a

finding that he possessed more than 200 but less than 300 grams of cocaine,

because Nava admitted to possessing approximately 250 grams of cocaine. See

Booker, 543 U.S. at __, 125 S.Ct. at 756; see also Shelton, 400 F.3d at 1300.

Nevertheless, we hold that there was statutory error in light of Booker because the

district court misapplied the Guidelines by considering them as mandatory, as

opposed to advisory. See Shelton, 400 F.3d at 1331. Moreover, because the

government has not met its burden of showing that this error was harmless, we

vacate Nava’s sentence and remand this case to the district court for resentencing

consistent with Booker.



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VACATED AND REMANDED.




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