                                                                         [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                  FILED
                             FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                               ________________________ ELEVENTH CIRCUIT
                                                                            MARCH 23, 2006
                                      No. 04-13174                         THOMAS K. KAHN
                                ________________________                       CLERK


                           D. C. Docket No. 02-20676-CR-CMA

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                             versus

MAX DANIEL,
RICHARD DANIEL,


                                                                  Defendants-Appellants.


                                ________________________

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

                                      (March 23, 2006)

Before BIRCH and MARCUS, Circuit Judges, and MILLS *, District Judge.


       *
           Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
PER CURIAM:

      Max and Richard Daniel appeal their convictions and sentences for several

firearm and drug offenses, arguing that the district court improperly admitted

evidence concerning an uncharged burglary, abused its discretion regarding

evidentiary matters by admitting hearsay, violated appellants’ Confrontation

Clause rights with respect to that hearsay, failed to find the evidence insufficient to

support conviction on some charges, and erred by applying the Sentencing

Guidelines in a mandatory fashion. Because this last issue constitutes reversible

error, we must VACATE the original sentences and REMAND for resentencing.

The district court did not err as to appellants’ first and fourth arguments, and any

error associated with the second and third arguments is harmless beyond a

reasonable doubt; therefore, we AFFIRM the convictions.



                                 I. BACKGROUND

      Appellants were indicted in the Southern District of Florida on ten counts

related to drugs and guns. Count 1 was for conspiracy to engage in the business of

firearms dealing without being licensed importers, manufacturers, or dealers, in

violation of 18 U.S.C. § 922(a)(1)(A). Count 2 was for conspiracy to distribute

five grams or more of cocaine base and a detectable amount of marijuana, in



                                           2
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(D) and 21 U.S.C. § 846.

Counts 3 and 7 were for distributing five grams or more of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Counts 4 and 8 were for

carrying a firearm during and in relation to the drug trafficking crimes set forth in

Counts 3 and 7 respectively, in violation of 18 U.S.C. § 924(c)(1)(A)(i).

      Appellants were also charged individually. In Count 5, Richard was charged

with distributing a detectable amount of marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(D), and, in Count 6, he was charged with carrying a

firearm during and in relation to the drug trafficking crime set forth in Count 5, in

violation of 18 U.S.C. § 924(c)(1)(A)(i). In Count 9, Max was charged with

distributing a detectable amount of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(C), and, in Count 10, he was charged with possession of a

firearm in furtherance of the drug trafficking crime set forth in Count 9, in

violation of 18 U.S.C. § 924(c)(1)(A)(i).

      At trial, appellants challenged several evidentiary rulings made by the

district court that are thus preserved for appellate review. At the start of the trial,

the government introduced evidence about a burglarized pawn shop from which

thirty-three firearms were stolen. Appellants objected, but the government replied

that the burglary helped the government tell the story of the weapons trafficking



                                            3
charges, because the burglary explains from where the appellants obtained the guns

they were dealing.

      Subsequent to the pawn shop burglary, Richard was stopped, and a weapon

stolen from the pawn shop was discovered on him. Richard claimed the weapon

was sold to him by others, but the police decided to pursue Richard as a lead in the

burglary. They used an undercover informant, who had prior dealings with

Richard, to attempt to purchase guns and drugs. Over the course of the informant’s

dealings with appellants, the charged quantities of drugs and several guns from the

pawn shop were recovered.

      One of these exchanges occurred on 19 June 2002. Prior to the meeting

between the informant and the appellants, the informant and the car in which the

meeting was to take place were searched to ensure that neither contraband drugs

nor firearms were in the car. At one point in the meeting, the police officers

observing the transaction got nervous about the length of time the meeting was

taking and called the informant on his cell phone. The officer testified at trial

about the conversation he heard between the informant and the appellants.1 Most

of the statements were incontestably admissible as coconspirator statements,

however, at one point, the officer testified that the informant said, “Put all that stuff



      1
          The informant was killed before trial and was, therefore, unable to testify.

                                                 4
behind the seat.” R14-233 at 52. After the meeting concluded, the informant

returned the car to the police. The subsequent search of the car yielded several

weapons and almost 10 grams of cocaine base.

       After this six-day trial, appellants were found guilty of all charges. Max

received a 757-month sentence, which was at the bottom of the applicable

Guideline range and consisted of a 97-month sentence for the drug offenses and a

statutorily mandated consecutive 660-month sentence for the firearm offenses.

Richard received a 768-month sentence, which was at the bottom of the applicable

Guideline range and consisted of a 108-month sentence for the drug offenses and a

consecutive 660-month sentence for the firearm offenses.

       The appellants raise several issues for our consideration on appeal. First,

they argue that the admission of testimony regarding the uncharged burglary was

impermissible use of evidence of unrelated bad acts that was also unfairly

prejudicial to the appellants. Second, appellants argue that the officer’s testimony

about what the informant said during the 19 June 2002 meeting constituted

impermissible hearsay and violated their rights under the Confrontation Clause.

Third, appellants argue that the evidence in the case does not support conviction on

charges related to using a firearm in the course of narcotics trafficking. Finally,

appellants argue, for the first time on appeal, that the district court erred in light of



                                            5
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), by applying the

Sentencing Guidelines as mandatory to determine their sentences. We address

these issues in turn.



                                 II. DISCUSSION

A. Background Evidence

      Appellants argue that the district court erred when it admitted evidence

regarding the burglary of a pawn shop. Appellants argue that this evidence is

prejudicial evidence of past bad acts whose admission violates Federal Rule of

Evidence 404(b). The government responds that this evidence is necessary

background information that helps tell the story of the crime and is otherwise

inextricable from evidence regarding the charged crimes.

      Evidence of uncharged criminal activities is inadmissible unless the

uncharged acts arose from the same transaction, are necessary to complete the story

of the crime, or are inextricably intertwined with the evidence regarding the

charged offense. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).

Even if the evidence meets one of these exceptions, it may still be excluded if “its

probative value ‘is substantially outweighed by the danger of unfair prejudice.’”

United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992) (quoting Fed. R.



                                          6
Evid. 403).

      Our review of such evidentiary questions is deferential. We will not disturb

a district court’s decision regarding a Rule 404(b) determination absent an abuse of

discretion. United States v. Baker, 432 F.3d 1189, 1205 (11th Cir. 2005). The

district court concluded that the brief testimony regarding the pawn shop burglary

was inexorably intertwined with the charged offenses, because it explains where

the appellants obtained the guns that they were selling. Although we might have

categorized this background information as necessary to tell the story of the crime,

the exceptions to the general rule overlap in places, and the district court’s

determination that this background information fell within one of the Jiminez

exceptions was not an abuse of discretion. Nor is district court’s conclusion

regarding prejudice—that the probative value of this evidence is not substantially

outweighed by the danger of unfair prejudice—an abuse of discretion, because

there is no unfair danger that this evidence would have improperly affected the

jury’s ability to objectively consider the evidence for its admitted purpose.



B. Testimonial Evidence

      Appellants raise two claims of error regarding certain testimony elicited at

trial, one a hearsay objection and the other a Confrontation Clause objection under



                                           7
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Given the doctrinal

uncertainty regarding Crawford, we follow the general approach taken in United

States v. Abdelazz, 144 Fed. Appx. 821 (11th Cir. 2005) (per curiam). In

Abdelazz, we bracketed the tricky constitutional question—what constitutes a

testimonial statement for Confrontation Clause purposes—by first asking whether

the putative Confrontation Clause error was harmless beyond a reasonable doubt.

Id. at 827 (citing United States v. Candelario, 240 F.3d 1300, 1307 (11th Cir.

2001)). After concluding that the assumed constitutional error was harmless

beyond a reasonable doubt, we observed that the hearsay objection regarding the

same statement is also harmless, because the nonconstitutional error is subject to a

less demanding standard than the constitutional error. Id. at 829 (citing United

States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005); United States v.

Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (per curiam)).

      Thus, for the resolution of this case, we assume the statement violated the

Confrontation Clause and then must determine whether the violation is harmless

beyond a reasonable doubt. The Supreme Court has provided some guidance,

observing that whether

      an error is harmless in a particular case depends upon a host of
      factors, all readily accessible to reviewing courts. These factors
      include the importance of the witness’ testimony in the
      prosecution’s case, whether the testimony was cumulative, the

                                         8
      presence or absence of evidence corroborating or contradicting the
      testimony of the witness on material points, the extent of
      cross-examination otherwise permitted, and, of course, the overall
      strength of the prosecution’s case.

Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986).

      Here, appellants concede that the only out of court statement that might

violate their Confrontation Clause rights is the one overheard by the officer at the

19 June 2002 meeting between them and the informant. The officer testified that

the informant said, “Put all that stuff behind the seat.” R14-233 at 52. We

conclude that this statement was unnecessary to the government’s case, because the

car and informant were clean before the meeting, and the car had weapons and

drugs in it after the meeting. Also, the officer testified that the informant’s car was

never out of sight and that the informant interacted only with the appellants. R12-

232 at 50. Thus, the physical evidence of the guns and drugs is overwhelmingly

strong evidence of that day’s transaction, and only the weakest of inferences from

the hearsay statement—that, because the informant was sent to get drugs and guns

from the appellants, the “stuff” of the informant’s out of court statement must be

guns or drugs—supports a finding of an element of a charged crime. The physical

evidence so greatly outweighs the probative value of the out of court statement that

we conclude its influence on the jury was at best cumulative to the physical

evidence. Because only the appellants could have provided the guns and drugs to

                                           9
the informant given the observations made by police officers, the statement

regarding the location of the drugs inside of the car was irrelevant to an element of

the charged crime.

      Because the testimony asserted to violate appellants’ confrontation rights is

at worst irrelevant and at best cumulative to the physical evidence, we conclude

that, even if the admitted evidence violated the Confrontation Clause, the error is

harmless beyond a reasonable doubt. Because we find that the admission of the

statement to be harmless beyond a reasonable doubt with regard to its

constitutional implications, it follows that the error was also harmless under the

lower standard applicable to the nonconstitutional hearsay error.



C. Sufficiency of the Evidence

      Appellants challenge neither their convictions for firearms trafficking nor

those for drug trafficking. They do assert that the government did not prove

several counts related to 18 U.S.C. § 924(c)(1)(A), which provides an increased

mandatory minimum punishment when “any person who, during and in relation to

any . . . drug trafficking crime . . . uses or carries a firearm, or who, in furtherance

of any such crime, possesses a firearm.” Thus, there are two separate ways to

violate the statute: to use or carry a firearm during and in relation to a drug



                                            10
trafficking crime or to possess a firearm in furtherance of a drug trafficking crime.

      Appellants concede that the charges involving guns used for protection

during drug transactions violate the statute. They assert, however, that they could

not be convicted when guns were only sold with drugs. This contention is plainly

refuted in United States v. Timmons, 283 F.3d 1246 (11th Cir. 2002). In

Timmons, we noted that the terms “use” and “carry” were to be broadly construed

such that the weapon need not be on the person and that “during and in relation to”

means either facilitates the drug offense or has the potential to facilitate the

offense. 283 F.3d at 1250–51. Noting that “the purpose of the statute is to combat

the dangerous combination of drugs and guns,” we affirmed the jury’s verdict in

Timmons when the defendant brought the gun and drugs to the point of sale in a

shoebox. Id. at 1251–52. We conclude that the same result obtains here. Even if

appellants were “only” selling guns and drugs together, the jury still could

reasonably conclude that a firearm was used during and in relation to a drug

trafficking crime because of the dangerous combination of guns and drugs

throughout the preparation, negotiation, and transaction of the deal.



D. Booker Error

      In this appeal, the appellants challenge only the mandatory application of the



                                           11
Guidelines, which has become known as “statutory” Booker error. See United

States v. Shelton, 400 F.3d 1325, 1326 (11th Cir. 2005) (differentiating between

Booker “constitutional” error and “statutory” error involving treatment of the

Guidelines as mandatory). Because this claim was not raised in the district court,

we review the appellants’ statutory Booker claim for plain error. See Shelton, 400

F.3d at 1328.

       Under the plain error standard, an appellate court may not correct an error

the defendant failed to raise in the district court unless there is “(1) error, (2) that is

plain, and (3) that affect[s] substantial rights.” United States v. Cotton, 535 U.S.

625, 631, 122 S. Ct. 1781, 1785 (2002) (applying plain error review to a claim

under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), raised only

on appeal) (quotations and citation omitted). “If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” Id. (quotations and citation omitted). The Supreme Court

has instructed that plain error review should be used only “in those circumstances

in which a miscarriage of justice would otherwise result.” United States v. Olano,

507 U.S. 725, 736, 113 S. Ct. 1770, 1779 (1993) (quotations and citation omitted).

       In Shelton, we found that the district court plainly erred by treating the



                                            12
Guidelines as mandatory. See 400 F.3d at 1331. In vacating and remanding

Shelton’s case for resentencing, we observed that the district court clearly

expressed its disagreement with the severity of Shelton’s sentence, which was

caused by his criminal history calculation under the Guidelines. See Shelton, 400

F.3d at 1332–33. Shelton, therefore, proved that there was a reasonable probability

that there would have been a different outcome if the Guidelines had not been

mandatory in his case. Id. at 1332.

      As for the fourth prong of the plain error test, we determined that “plain

error affecting substantial rights does not, without more, satisfy the plain-error test,

for otherwise the fourth prong and the discretion afforded by the fourth prong

would be illusory.” Id. at 1333. In examining the fourth prong of the plain error

test, we noted that, even after Booker, “the district court was, and still is, bound by

the statutory minimums.” Id. at 1333 n.10.      Nonetheless, we concluded that the

facts of that case warranted exercise of the court’s discretion to remand for

resentencing. Id. at 1333.

      In the this case, we have the same kind of error that Shelton previously

declared plain, so the first two prongs of the plain error test are met. As for the

third prong of the plain error test, the appellants had the burden of showing that

this pre-Booker error affected their substantial rights. See Cotton, 535 U.S. at 631,



                                           13
122 S. Ct. at 1285; Shelton, 400 F.3d at 1331. The district court’s discretion to

impose a lower sentence was severely limited by the applicable law requiring

consecutive sentences for the firearm offenses, and Booker did not affect that

obligation. See Shelton, 400 F.3d at 1333 n.10.

      The court, however, expressed its view that the appellants’ sentences were

excessive and noted its obligation to apply the then-mandatory Guidelines sentence

as to the drug offenses. If the district court had treated the Guidelines as advisory

as to the drug offenses, the record supports the conclusion that the sentences would

have been lower, because the court would have been able to sentence the appellants

as low as to the statutory mandatory minimum sentence of 720 months. Because

Max actually received a 757-month sentence and Richard actually received a

768-month sentence, the appellants have met their burden of showing an effect on

their substantial rights, because, if the Guidelines been treated as advisory, the

court could have sentenced them to over three years less, and there is a reasonable

probability that the court would have done so.

      As for the fourth prong of the plain error test, the district court expressed its

desire to impose a sentence below the low end of the Guideline range by (1)

expressing its disagreement with the appellants’ sentences, (2) stating that it was

bound by the Guidelines, and (3) stating during Richard’s sentencing that it would



                                           14
sentence Richard differently if it had the discretion to do so. See Shelton, 400 F.3d

at 1333–34. These statements by the court indicate to us that the error in this case

affects the fairness and integrity of judicial proceedings, and, therefore, the

appellants have satisfied the fourth prong of the plain-error test.



                                III. CONCLUSION

      Max and Richard Daniel have appealed their convictions and sentences for

several firearm and drug offenses. The district court’s admission of background

information related to the burglary was not an abuse of discretion. We have set

aside the tricky Confrontation Clause question, concluding that the admission of

certain hearsay evidence is harmless beyond a reasonable doubt. Furthermore, the

evidence in the case does support conviction on charges related to using a firearm

in the course of narcotics trafficking. Thus, we AFFIRM the convictions.

However, because the district court applied the Sentencing Guidelines in a

mandatory fashion, we VACATE the original sentences and REMAND for

resentencing.




                                           15
