                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                       FILED
                       ________________________
                                                             U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                              No. 04-14113
                                                                   JUNE 10, 2005
                          Non-Argument Calendar                 THOMAS K. KAHN
                        ________________________                     CLERK

                       D.C. Docket No. 03-00020-CR-1

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

     versus

JOSE RODRIGUEZ,

                                                       Defendant-Appellant.

                       __________________________

              Appeal from the United States District Court for the
                         Southern District of Alabama
                        _________________________
                               (June 10, 2005)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:
      Jose Rodriguez appeals his 304-month sentence imposed for conspiracy to

distribute and possess with intent to distribute methamphetamine. After review,

we vacate his sentence and remand to the district court for resentencing.

                               I. BACKGROUND

A.    Guilty Plea

      Rodriguez pled guilty to conspiracy to distribute and possess with intent to

distribute more than 500 grams of a mixture and substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846.

      Attached to Rodriguez’s plea agreement was a “factual resume” containing

the facts that Rodriguez admitted as true. According to the factual resume,

Rodriguez was part of a methamphetamine distribution conspiracy. Specifically,

in October 2001, Kenneth and Debra Parks introduced Rodriguez to Truman

Rodney Daniel, a suspected methamphetamine trafficker. The Parkses introduced

Rodriguez as their source for methamphetamine in California. At the meeting,

which took place in Barstow, California, Daniel purchased one-half pound of

methamphetamine from Rodriguez, which Daniel then brought back to Baldwin

County, Alabama for distribution.

      On October 21, 2002, California law enforcement officers arrested

Rodriguez while he was operating a clandestine methamphetamine laboratory in a

                                         2
shed in Helendale, California. The shed was located beside a house/residence

where law enforcement officers found precursor materials used to manufacture

methamphetamine. Law enforcement officers also found two cell phones,

approximately 1.5 pounds of methamphetamine, digital scales, a large knife, a

rifle, and a .40-caliber semi-automatic handgun during a “search of the property.”

Additionally, there were children in the house at the time of Rodriguez’s arrest.

The factual resume also stated that the parties agreed that Rodriguez was

responsible for 7.5 pounds, or 3.4 kilograms, of methamphetamine.

       During the plea colloquy, the district court confirmed that Rodriguez had

reviewed the factual resume. Rodriguez acknowledged that he read, understood,

and signed the factual resume and that he “did the things that it” said he did. The

district court then adjudicated Rodriguez guilty.

B.     PSI and Sentencing

       The PSI assessed Rodriguez a base offense level of 34. The PSI also

assessed: (1) a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) because

a dangerous weapon was possessed during the conspiracy;1 and (2) a six-level

enhancement pursuant to U.S.S.G. § 2D1.1(b)(5)(C) because the offense involved



       1
        Section 2D1.1(b)(1) provides that “[i]f a dangerous weapon (including a firearm) was
possessed, increase by 2 levels.” U.S.S.G. § 2D1.1(b)(1) (2003).

                                             3
the manufacture of methamphetamine and created a substantial risk of harm to the

life of a minor.2 After a three-level reduction for acceptance of responsibility,

Rodriguez’s total adjusted offense level was 39. With a criminal history category

of III, Rodriguez’s Guidelines range was 324-405 months’ imprisonment. The PSI

also noted a mandatory minimum sentence of 120 months’ imprisonment, pursuant

to 21 U.S.C. § 841(b)(1)(A).

       In the district court, Rodriguez objected to both the firearm and

endangerment-to-a-minor enhancements. He argued (1) that there was insufficient

evidence to support the enhancements, and (2) that application of the

enhancements violated his Sixth Amendment rights pursuant to Blakely v.

Washington, 542 U.S. __, 124 S. Ct. 2531 (2004).

       Furthermore, at the sentencing hearing, the government did not rely solely

on the factual resume to support the two enhancements, but instead called a law

enforcement witness to testify. At the sentencing hearing, San Bernadino County

Sheriff Deputy Mark Rogers testified that the shed where Rodriguez was found

and arrested was located in a rural area about 25 feet from the house/residence.


       2
         Section 2D1.1(b)(5)(C) provides that “[i]f the offense (i) involved the manufacture of . . .
methamphetamine; and (ii) created a substantial risk of harm to the life of a minor . . . increase by
6 levels.” U.S.S.G. § 2D1.1(b)(5)(C) (2003). This Court has held that “[a]lthough the district court
is not required to identify a specific minor, it must still make a finding that the defendant’s actions
placed a minor at risk.” United States v. Florence, 333 F.3d 1290, 1293 (11th Cir. 2003).

                                                  4
Although Rodriguez was found in the shed, he did not live on the property.

Rather, Manuel Torres and Rosa Lacosta lived in the house/residence. Rogers

also testified that Lacosta’s three-year-old grandson was on the property during

the search, and Lacosta informed Rogers that the child was there every afternoon

and that other children also stayed at the house.

      According to Rogers, Torres was paid money to allow drug manufacturing

at the location. Rodriguez told Rogers at the time of arrest that he was there to

purchase methamphetamine, but that his fingerprints would be found on one of the

containers used to make the methamphetamine. Further, Rogers testified that there

was a large dump pit with chemicals in the dirt outside of the shed.

      Additionally, Rogers testified that he found the following items in the

house/residence during the search: (1) MSM (a common drug cutting agent), (2)

Red Devil Lye, (3) linen bed sheets used as a filter, (4) bungee cords, (5) the rifle,

and (6) the semi-automatic handgun.

      After Rogers’s testimony, the district court determined that there was

sufficient evidence to support enhancements. As to the firearm enhancement, the

district court found that the firearms discovered in the house/residence were

related to Rodriguez’s manufacture of methamphetamine in the shed. Specifically,

the district court stated that “although the lab was out there, there is evidence from

                                           5
the officer, three or four items found in the house related to the manufacture of

methamphetamine.” Later, when referring to the shed and the evidence found in

the house, the district court stated that “clearly, it’s all interwoven.”

      As to the endangerment-to-a-minor enhancement, the district court

determined that there was a substantial risk of danger to the three-year-old child in

light of the proximity of the shed and dump pit to the house/residence.

Specifically, the district court stated:

      Well, what I picture in my mind’s eye . . . is a three year old child
      standing on the deck of that [house], where the officer was sitting when
      he was testifying and how long it would take him to walk the thirty feet
      to the back of this courtroom if somebody turned their attention away
      from him for a moment. It would take ten seconds and that child could
      be in that meth lab. So I find there is a substantial risk of danger to a
      minor, or was, I should say, and hopefully, I mean thankfully it’s a was
      and not an is.

      The district court further determined that Blakely did not apply to the

Guidelines, and overruled Rodriguez’s objections to the enhancements.

      The government recommended that Rodriguez be sentenced at the low end

of the Guidelines range, and the district court stated that it would do so because,

“based on the length of this sentence and all the circumstances, that [it] is

appropriate.” The district court then sentenced Rodriguez to 304 months’

imprisonment and 5 years’ supervised release, noting that the sentence



                                            6
“addresse[d] the sentencing objectives of punishment, deterrence and

incapacitation.”3 Rodriguez timely appealed.

                                      II. DISCUSSION

       On appeal, Rodriguez argues that the district court’s application of the

firearm enhancement and the endangerment-to-a-minor enhancement violated his

Sixth Amendment rights pursuant to Blakely.4

       Because Rodriguez raised his 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 United States v. Booker, 543 U.S. –, 125 S. Ct. 738 (2005), a majority of

the Supreme Court concluded that the mandatory nature of the Guidelines made

them incompatible with the Sixth Amendment’s guaranty of the right to a jury trial


       3
        The district court also noted that the 304-month sentence did “not reflect a downward
departure from the guideline range [of 324-405 months’ imprisonment].” Rather, the 304-month
sentence “takes into account the time during which [Rodriguez was] in California state custody for
an offense that has been taken into account in the determination of the offense level of the instant
offense” pursuant to U.S.S.G. § 5G1.3(b).
       4
        Rodriguez’s plea agreement contained a sentence-appeal waiver. We note that Rodriguez’s
argument that the district court violated his Sixth Amendment rights as to the endangerment-to-a-
minor enhancement arguably is barred by his sentence-appeal waiver. See United States v. Rubbo,
396 F.3d 1330, 1335 (11th Cir. 2005) (“In summary, the right to appeal a sentence based on
Apprendi/Booker grounds can be waived in a plea agreement. Broad waiver language covers those
grounds of appeal.”). However, the government does not make this argument on appeal, and thus
we decline to address it. See United States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (“[O]ur
well established rule is that issues and contentions not timely raised in the briefs are deemed
abandoned.”).

                                                 7
where “[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

guity or a jury verdict [was not] admitted by the defendant or proved to a jury

beyond a reasonable doubt.” Booker, 125 S. Ct. at 756. As explained in United

States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005), petition for cert. filed,

73 U.S.L.W. 3531 (No. 04-1148) (Feb. 23, 2005), “[t]he constitutional error is the

use of extra-verdict enhancements to reach a guidelines result that is binding on

the sentencing judge; the error is the mandatory nature of the guidelines once the

guidelines range has been determined.”

       We first conclude that there was sufficient evidence in the factual resume

and from Deputy Rogers’s testimony to support the district court’s fact-findings as

to both the firearm and endangerment-of-a-minor enhancements.5 The firearms

enhancement was based on the rifle and .40-caliber semi-automatic handgun that

were found during the search of the property on which Rodriguez was operating

the methamphetamine laboratory. According to Deputy Rogers, the firearms were

found in the house/residence, the house/residence was 25 feet away from the shed,

       5
          The government argues that in the factual resume Rodriguez admitted the necessary facts
to support the two enhancements. The problem with this argument is that the district court in making
its fact-findings relied not only on the factual resume, but also on Rogers’s testimony. Thus, we
need not reach the issue of whether the factual resume alone was sufficient to support the
enhancements because the district court relied on both the factual resume and Rogers’s testimony
for its fact findings.

                                                 8
and several other pieces of evidence related to the manufacture of

methamphetamine were found in the house/residence, including MSM, a common

drug cutting agent.

      As to the endangerment-of-a-minor enhancement, Rodriguez admitted that

children were present in the house/residence. According to Deputy Rogers,

Lacosta’s three-year-old grandson was on the property during the search, and the

child was there every afternoon. Further, the shed was just 25 feet from the

house/residence and there was a dump pit filled with chemicals next to the shed.

Accordingly, sufficient evidence supported the district court’s fact-findings as to

the two enhancements.

      Further, we conclude that the district court correctly determined the proper

Guidelines range for Rodriguez’s conviction is 324-405 months’ imprisonment.

Nonetheless, Rodriguez’s Sixth Amendment rights were violated because

Rodriguez’s sentence was enhanced, under a mandatory Guidelines system, based

on facts neither found by a jury nor admitted by Rodriguez in the factual resume.

The Sixth Amendment violation stemmed not from the district court’s extra-

verdict enhancements, but from the district court’s use of those extra-verdict

enhancements in sentencing Rodriguez in a mandatory Guidelines scheme.

Rodriguez, 398 F.3d at 1301.

                                          9
       After reviewing the record, we further conclude that the government has

failed to meet its burden to show that the constitutional error was harmless. See

Paz, 2005 WL 757876, at *2-3.6 In Paz, which was a Booker constitutional error

case, we explained that harmless error analysis puts the burden on the government

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

contribute to the sentence obtained.” Id. at *2. Thus, the government must show

beyond a reasonable doubt that the mandatory, as opposed to the advisory,

application of the guidelines did not contribute to the defendant’s sentence. See

United States v. Davis, – F.3d – , 2005 WL 1033422, at *1 (11th Cir. May 4,

2005). In the record in this case, there is no evidence indicating what effect, if

any, changing from a mandatory to an advisory approach would have had on the

district court’s sentencing decision. Accordingly, “[w]e simply do not know what

the sentencing court would have done had it understood the guidelines to be

advisory rather than mandatory, and had properly considered the factors in 18

U.S.C. § 3553(a).” Id. at *2. “Therefore, the Government cannot meet its burden

of showing that the mandatory application of the guidelines in violation of


       6
         “To find harmless error, we must determine that the error did not affect the substantial rights
of the parties.” Paz, 2005 WL 757876, at *2 (quoting United States v. Hernandez, 160 F.3d 661, 670
(11th Cir. 1998)). “A constitutional error, such as a Booker error, must be disregarded as not
affecting substantial rights if the error is harmless beyond a reasonable doubt.” Id. (internal
quotation marks, punctuation and citation omitted).

                                                  10
[Rodriguez’s] Sixth Amendment right was harmless beyond a reasonable doubt.”

Id.; Cf. Rodriguez, 398 F.3d at 1301 (applying plain error analysis and stating that

because the defendant bore the burden of persuasion and no one could know what

would have happened in an advisory system, the defendant could not meet his

burden).

       Thus, we vacate Rodriguez’s sentence and remand for resentencing. On

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

Guidelines regime, and shall consider the Guidelines range of 324-405 months’

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

(Supp. 2004).” Booker, 125 S. Ct. at 757.7

       VACATED AND REMANDED FOR RESENTENCING




       7
          We do not mean to imply that on remand the district court must impose a lesser sentence.
On remand, the district court may impose the same sentence. Rather, we merely hold that the
government has failed to meet its burden to show that the Booker constitutional error of sentencing
under a mandatory Guidelines regime was harmless. Additionally, 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 Guidelines 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.

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