                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                APRIL 27, 2005
                                     No. 03-15141             THOMAS K. KAHN
                                 Non-Argument Calendar             CLERK
                               ________________________

                        D. C. Docket No. 97-14010-CR-JCP

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                        versus

ERNSLEY TONY,
a.k.a. Eiensley Thony, etc.,

                                                             Defendant-Appellant.


                               ________________________

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

                                    (April 27, 2005)


Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
      Following resentencing, Appellant Ernsley Tony appeals his 210-month

sentences for conspiracy to possess with intent to distribute cocaine base, in

violation of 21 U.S.C. § 846 (Count One), and possession with intent to distribute

cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count Three). Tony raises

three issues on appeal. First, Tony asserts that the district court erred under

Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), by

enhancing his sentences based on facts not alleged in the indictment nor found by a

jury. Second, he argues that the district court erred by denying his request for

funds to retain a mental health expert prior to resentencing because he gave proper

notice and he was entitled to a psychiatrist’s assistance. Third, he contends that the

district court erred in applying the obstruction-of-justice enhancement under

U.S.S.G. § 3C1.1 because both the revised presentence investigation report

(“RPSI”) and the district court failed to identify the specific perjured statements

Tony made at trial that were material and significantly obstructed the prosecution.

As discussed further herein, because we vacate and remand as to the first issue, the

second and third issues are moot.

      Tony argues that the district court erred by sentencing him above the

maximum sentence allowed by law based on facts not alleged in the indictment nor

found by a jury. He contends that, under Blakely, a judge may not impose a greater



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punishment after finding additional facts than the maximum sentence that could be

imposed without any additional findings. Tony asserts that the jury did not decide

whether he obstructed justice. He further contends that, because his indictment did

not allege a quantity of crack cocaine, and the jury did not determine the drug

amount or that he obstructed justice, his offense level should have been 12, which

would have yielded a guideline range of 21 to 27 months’ imprisonment.

According to Tony, he preserved the issue of drug quantity by objecting during his

allocution at his resentencing hearing. He argues that the erroneous application of

the guidelines affected his substantial rights because the jury could have attributed

to him less than the total crack involved because he had two codefendants. He

contends that the district court plainly erred in applying the obstruction-of-justice

enhancement because the court’s factual findings invaded the province of the jury,

which affected the fairness, integrity, and public reputation of the proceedings.

      Because Tony failed to properly preserve this objection, we review only for

plain error. To satisfy the plain-error standard, we must find that (1) the district

court committed “error,” (2) the error was plain or obvious, and (3) the error

“affected substantial rights” in that the error was prejudicial and not harmless.

United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d

508 (1993). If these criteria are met, we may, in our discretion, correct the plain



                                           3
error if it “seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 736, 113 S.Ct. at 1779 (internal quotations and citation

omitted).

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

decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), finding that “[a]ny fact (other than a prior conviction) which is necessary

to 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 United States v. Rodriguez, ___F.3d ___, No. 04-12676 (11th Cir. Feb. 4,

2005), we rejected a defendant’s Booker claim under plain-error review, holding

that the “error” in Booker was the use of extra-verdict enhancements under a

mandatory system, not the use of extra-verdict enhancements to increase a

defendant’s guideline range. Id. at ___. We stated that, to satisfy the third prong

of the plain-error test, a defendant

       must establish a reasonable probability that if the district court had
       considered the guidelines range it arrived at using extra-verdict
       enhancements as merely advisory, instead of mandatory, and had
       taken into account any otherwise unconsidered [18 U.S.C.] § 3553
       factors, the court would have imposed a lesser sentence than it did.

Id.



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      In United States v. Shelton, ___F.3d ___, No. 04-12602 (11th Cir. Feb. 25,

2005), we held that a defendant who fails to object to the facts in the PSI has

admitted to the facts and, consequently, there is no Sixth Amendment violation

under Booker. Shelton, ___ F.3d at ___. We also held that a Booker error occurs

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

even in the absence of a Sixth Amendment violation.” Id. at ___. Furthermore,

Booker “made plain the district court’s error in sentencing [the defendant] under a

mandatory Guidelines scheme that is now advisory.” Id. at ___. In addition, we

held in Shelton that, where the district court had indicated that the sentence was

“too severe,” sentenced the defendant to the lowest possible sentence under the

Guidelines, and stated that the sentence was “more than appropriate,” the defendant

had established a reasonable probability that the district court would have imposed

a lesser sentence. Id. at ___. Furthermore, we held that the fourth prong of plain

error analysis was satisfied as well, because the district court “indicated an express

desire to impose a sentence lesser than the low end of the Guidelines range . . . and

the Supreme Court in Booker plainly indicated that the district court now has the

discretion to do so, provided the resulting sentence is reasonable in light of the

§ 3553(a) factors.” Id. at ___.




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      After reviewing the record, we conclude that Tony has shown a Booker error

for both the drug quantity and the obstruction-of-justice enhancement because the

district court “misapplie[d] the Guidelines by considering them binding as opposed

to advisory.” See id. at ___. Additionally, this error was plain under Booker. See

id. Because the district court (1) stated that it wished to consider Tony’s personal

background, but was prevented from doing so by the Guidelines, (2) stated that the

sentence was “too heavy” for the crime Tony had committed, and (3) sentenced

Tony to the lowest possible sentence under the Guidelines, there is a “reasonable

probability that the district court would have imposed a lesser sentence.” Id. at

___. The district court’s indication of a desire to sentence Tony to a lesser

sentence and to consider his personal history and characteristics, which are factors

set forth for consideration under § 3553(a), satisfies the fourth prong of the plain

error test. Id. at ___. Therefore, the district court plainly erred in sentencing Tony

under a mandatory Guidelines scheme, and this error affected his substantial rights

as well as the fairness, integrity or public reputation of the judicial proceedings in

his case.

      For the foregoing reasons, we vacate Tony’s sentences and remand this case

for resentencing.

      VACATED AND REMANDED.



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