                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                            U.S. COURT OF APPEALS
                                 No. 04-15160                 ELEVENTH CIRCUIT
                                                                  MAY 25, 2005
                             Non-Argument Calendar
                                                               THOMAS K. KAHN
                           ________________________
                                                                    CLERK

                       D. C. Docket No. 04-20228-CR-CMA

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                      versus

PITTER SANCHEZ,

                                                             Defendant-Appellant.

                           ________________________

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

                                  (May 25, 2005)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      After pleading guilty, Defendant Pitter Sanchez appeals his 57-month

sentence for importing 100 grams or more of heroin into the United States, in

violation of 21 U.S.C. § 952(a), and possession with intent to distribute 100 grams
or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B). After

review, we vacate Sanchez’s sentence and remand for resentencing.

       Sanchez, traveling with his wife and two minor daughters, arrived at the

Miami Airport on a flight from Bogota, Colombia. After the inspectors noted

inconsistencies in Sanchez’s and his wife’s statements concerning their visit to the

United States, Sanchez admitted to swallowing an unknown number of pellets

containing narcotics. An x-ray of Sanchez’s abdominal area revealed the presence

of the pellets. Sanchez was taken to the hospital and passed a total of 94 pellets.

According to the Drug Enforcement Administration laboratory analysis, the 94

pellets contained a total of 826.3 grams of heroin.1

       The PSI recommended a base offense level of 30, with a two-level decrease

under § 2D1.1(b)(6) (specific offense characteristic), a two-level enhancement

under § 3B1.4 (using a minor child to commit the offense or to avoid detection or

apprehension), and a three-level reduction under §§ 3E1.1(a) & (b) (acceptance of

responsibility). With a criminal history of I, the applicable guideline range was 70-

87 months’ imprisonment.

       1
         The DEA did not weigh each of the pellets. Rather, a certain percentage of the pellets were
weighed and the total weight was extrapolated from the sample size. On appeal, Sanchez does not
contest the validity of the sample size used by the DEA, see United States v. Rivera-Maldonado, 194
F.3d 224, 230-32 (1st Cir. 1999) (discussing scientifically significant sample size and collecting
cases), nor does he allege that the district court’s factual finding regarding drug quantity was not
supported by a preponderance of the evidence. Consequently, we do not address these issues. See
United States v. Harris, 376 F.3d 1282, 1291 (11th Cir. 2004) (issues not raised are waived).

                                                 2
      The defendant objected to the § 3B1.4 enhancement, arguing that he did not

use a minor child to commit the offense or to avoid detection or apprehension, and

that the enhancement violated Blakely v. Washington, 124 S. Ct. 2531 (2004).

The defendant also objected to the district court’s drug quantity calculation,

arguing that, under Blakely, the district court could hold him accountable only for

the 100 grams of heroin in the indictment and guilty-plea admission.

      The district court sustained the defendant’s objection to the enhancement

under § 3B1.4, but overruled the defendant’s objection as to the drug quantity

calculation. Consequently, the defendant’s adjusted offense level was 25, which

rendered a guideline range of 57-71 months’ imprisonment. As noted above, the

district court sentenced Sanchez to the low-end of the guideline range.

      On appeal, Sanchez argues that his sentence violates the Sixth Amendment

under United States v. Booker, 125 S. Ct. 738 (2005), because the district court

held him accountable for a greater amount of drugs than he either pled guilty to or

otherwise admitted. Because Sanchez raised a Blakely objection in the district

court and in his initial brief on appeal, we review his sentence de novo. United

States v. Paz, – F.3d –, 2005 WL 757876, at *2 (11th Cir. April 5, 2005).

      In Paz, we explained that harmless-error analysis applies in de novo review

cases and puts the burden on the government to show “‘ beyond a reasonable doubt



                                          3
that the error complained of did not contribute to the [sentence] obtained.’” Id. at

*2 (quoting United States v. Candelario, 240 F.3d 1300, 1307 (11 th Cir. 2001)). In

cases involving Booker error, the government must show that the mandatory, as

opposed to the advisory, application of the guidelines did not contribute to the

defendant’s sentence. Id. at *2; see also United States v. Rodriguez, 398 F.3d

1291, 1300-01 (11 th Cir. 2005).

      We first conclude that Sanchez’s Sixth Amendment rights were violated

when the district court enhanced his sentence, under a mandatory Guidelines

system, based on facts not found by a jury or admitted by the defendant. The Sixth

Amendment violation, however, stems not from the district court’s extra-verdict

enhancement (drug amount), but from the district court’s use of that extra-verdict

enhancement in sentencing Sanchez in a mandatory Guidelines scheme. See

Rodriguez, 398 F.3d at 1301.

      Indeed, there is no error shown as to the district court’s findings or the

guideline calculations in this case, and the constitutional error is not the district

court’s fact finding as to drug quantity. Rather, the constitutional error is the

district court’s use of that drug quantity in a mandatory guideline regime. Further,

the government concedes that the constitutional error in this case potentially

contributed to Sanchez’s sentence and is, therefore, not harmless.



                                            4
       In addition, we recognize that the district court did impose an alternative

sentence of 46 months’ imprisonment. However, the district court imposed the

alternative sentence if, under Booker, it was not permitted to determine drug

quantity under a preponderance-of-the-evidence standard. That is, the district

court’s 46-month sentence was based on a drug quantity of 100 grams of heroin.

       As noted above, under Booker, the district court is not limited to the 100

grams of heroin Sanchez pled guilty to. Rather, the district court may continue to

use its fact-finding regarding the 826.3 grams of heroin, as well as its other

previous guideline determinations, when resentencing Sanchez. That is, on

remand, the district court is required to sentence Sanchez under an advisory

Guidelines regime, and shall consider the guideline range of 57-71 months’

imprisonment, and “other statutory concerns as well, see [18 U.S.C.] § 3553(a)

(Supp. 2004).” Booker, 125 S. Ct. at 757; see United States v. Crawford, – F.3d –,

2005 WL 1005280, at *3-4 (11 th Cir. May 2, 2005). Thus, we vacate Sanchez’s

sentence and remand for resentencing under an advisory Guideline scheme.2

       VACATED AND REMANDED.



       2
        We do not know exactly what sentence the district court will impose on remand after
consulting the § 3553(a) factors. We will not attempt to decide now whether a particular sentence
below the Guideline range might be reasonable in this case. If there is an appeal of the actual post-
remand sentence which raises that issue, we can decide it then. Furthermore, we do not imply that
on remand the district court must impose a lesser sentence, or any particular sentence for that matter.

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