                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUNE 27, 2007
                             No. 06-13644                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 05-00315-CR-2-KD

UNITED STATES OF AMERICA,


                                                 Plaintiff-Appellee,

                                  versus

JARON LEWIS,

                                                Defendant-Appellant.


                       ________________________

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

                              (June 27, 2007)


Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Jaron Lewis appeals his 75-month sentence for conspiracy to possess and

distribute cocaine, in violation of 21 U.S.C. § 846. Lewis contends the district

court erred in: (1) finding by a preponderance of the evidence the amount of

cocaine involved in the conspiracy was at least 500 grams, despite the jury’s

finding the quantity was less than 500 grams; and (2) calculating a criminal history

point for a prior conviction for driving without a license. We vacate and remand

for resentencing.

                                 I. DISCUSSION

A. Drug Quantity

      The district court must determine the quantity of illegal drugs attributable to

the defendant in calculating the base offense level for a drug conspiracy offense,.

U.S.S.G. § 2D1.1(c). We review this factual determination for clear error. United

States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.), cert. denied, 125 S. Ct. 2935

(2005).

      Under U.S.S.G. § 1B1.3(a)(1)(A), the district court should consider “all acts

and omissions committed, aided, abetted . . . or willfully caused by the defendant

. . . that occurred during the commission of the offense of conviction” to make its

determination of base offense level. In cases involving drugs, “the defendant is

accountable for all quantities of contraband with which he was directly involved



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and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable

quantities of contraband that were within the scope of the criminal activity that he

jointly undertook.” U.S.S.G. § 1B1.3, comment. (n.2). The district court may

consider relevant acquitted conduct when making sentencing calculations, so long

as the Guidelines are applied as advisory, the conduct is proven by a

preponderance of the evidence, and the sentence imposed does not exceed the

statutory maximum sentence authorized by the jury’s verdict. United States v.

Faust, 456 F.3d 1342, 1348 (11th Cir.), cert. denied, 127 S. Ct. 615 (2006).

      If a defendant raises an objection to the drug quantity used in calculating his

Guidelines sentence, “the government bears the burden of establishing the disputed

fact by a preponderance of the evidence.” Rodriguez, 398 F.3d at 1296. Although

preponderance of the evidence is a relaxed evidentiary standard, “it does not grant

the court a license to sentence a defendant in the absence of sufficient evidence

when that defendant has properly objected to a factual conclusion.” Id.

      The district court’s finding the drug quantity attributable to Lewis was at

least 500 grams was not clearly erroneous, despite the jury’s finding the amount

involved was less than 500 grams. At Lewis’s trial, two co-conspirators involved

in the drug purchase leading to the charge against Lewis testified the transaction

was for 750 grams and 500 grams, respectively. This evidence sufficiently



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supports the district court’s finding. Moreover, the district court applied the

Guidelines as advisory and imposed a sentence significantly below the 20-year

maximum sentence authorized by the jury’s verdict. See 21 U.S.C. § 841(b)(1)(C);

Faust, 456 F.3d at 1348.

      Lewis’s argument the district court should have applied the beyond a

reasonable doubt standard is foreclosed by our precedent. See, e.g., Faust, 456

F.3d at 1347-48; Rodriguez, 398 F.3d at 1296-97. Accordingly, the district court

did not err in its drug quantity finding.

B. Criminal History

      Although we review a district court’s findings of fact for clear error, we

review a district court’s application of the Sentencing Guidelines de novo. United

States v. Ndiaye, 434 F.3d 1270, 1280 (11th Cir.), cert. denied, 127 S. Ct. 128

(2006). Under U.S.S.G. § 4A1.2(c), misdemeanor and petty offenses are generally

considered in calculating a defendant’s criminal history score. However, certain

offenses, including driving without a license, are counted only if “(A) the sentence

was a term of probation of at least one year or a term of imprisonment of at least

thirty days, or (B) the prior offense was similar to an instant offense.” Id. When a

defendant raises a challenge to a factual basis of his sentence, the burden is on the




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government to establish the disputed fact by a preponderance of the evidence.

Ndiaye, 434 F.3d at 1300.

      Lewis objected to the statement in his presentence investgation report

(“PSI”) that he was convicted by a municipal court for driving without a license

and received a sentence of 33 months’ probation. Lewis argued the sentence was a

legal impossibility because Alabama law did not allow municipal courts to impose

such a sentence. The district court nevertheless counted the offense when

calculating Lewis’s criminal history score, stating Lewis did not produce evidence

of the actual term of probation imposed.

      At the sentencing hearing, the Government did not challenge Lewis’s

argument the sentence stated in the PSI was legally impossible, nor did the district

court find his position lacked merit. Also, the Government does not argue on

appeal the PSI could have been correct, and Alabama law supports Lewis’s

position. See Ala. Code § 32-6-18(a) (defining driving without a driver’s license

as a misdemeanor offense punishable by a fine between $10 and $100 and a $50

penalty); id. § 15-22-54(a) (stating “in no case shall the maximum probation period

of a defendant guilty of a misdemeanor exceed two years”).

      After Lewis raised this uncontested basis for questioning the facts in his PSI,

however, the district court placed the burden on Lewis to prove his conviction



                                           5
should not count under § 4A1.2(c) because it resulted in a sentence of less than one

year of probation. This was erroneous because the burden should have shifted to

the Government to establish the length of his probation by a preponderance of the

evidence. See Ndiaye, 434 F.3d at 100. The Government, however, did not

present any such evidence. Instead, the only evidence Lewis received at least one

year of probation for the conviction is the disputed statement in the PSI. Because it

is the Government’s burden to prove a disputed fact and the government did not do

so, the district court erred by assigning Lewis a criminal history point under

§ 4A1.2(c) for his driving without a license offense.

         If, on review, we determine the district court committed an error in

calculating the Guidelines range, we must vacate the sentence and remand the case

unless the district court would have likely sentenced the defendant in the same way

had the error not occurred. United States v. Scott, 441 F.3d 1322, 1329 (11th Cir.

2006). The burden to establish the error was harmless rests with the party

defending the sentence. United States v. Williams, 456 F.3d 1353, 1362 (11th Cir.

2006).

         The difference between the correct range and the calculated range was slight.

Without the error, Lewis would have had one criminal history point for a

conviction for driving with a suspended license and obstructed windshield. Thus,



                                            6
he would have been in a criminal history category of I, and the advisory Guidelines

range would have been 63 to 78 months, instead of 70 to 87 months. U.S.S.G. Ch.

5, Pt. A. When sentencing Lewis, the district court found the advisory range over-

represented Lewis’s criminal history and stated it would balance that consideration

against Lewis’s denial of his role in the conspiracy during his trial.

      The district court did not, however, state it would have reached the same

conclusion regardless of the disputed issue of Lewis’s criminal history category.

Cf. Scott, 441 F.3d at 1330. Although the imposed 75-month sentence is within the

Guidelines range the district court should have used, it is at the high-end of that

range, and it is unclear how the district court would have balanced Lewis’s minor

criminal history against his denial of involvement if it had used the appropriate

range as guidance. Therefore, the Government has not met its burden to show that

the error was harmless. Thus, the district court erred in imposing a criminal history

point for driving without a license.

                                 II. CONCLUSION

      The district court’s drug quantity finding was not clearly erroneous,

however, the district court erred in its calculation of Lewis’s criminal history




                                           7
category. Accordingly, we vacate Lewis’s sentence and remand for a new

sentencing proceeding in accordance with this opinion.

      VACATED AND REMANDED.




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