                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT         FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               July 11, 2005
                               No. 04-14029
                                                            THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D.C. Docket No. 02-00073-CR-J-25-HRS

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellant,

      versus

ALBERTO J. BUILES,

                                                        Defendant-Appellee.

                        __________________________

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

                                 (July 11, 2005)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      The government appeals Alberto J. Builes-Molina’s 97-month sentence for

conspiracy to import five kilograms or more of cocaine and one kilogram or more
of heroin, in violation of 21 U.S.C. §§ 960(b)(1)(A), (b)(1)(B) and 963. The

government argues on appeal that the district court improperly calculated Builes-

Molina’s Guidelines range based on its interpretation of Blakely v. Washington,

542 U.S. ____, 124 S. Ct. 2531 (2004), which was applied to the Sentencing

Guidelines in United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). After

review, we vacate Builes-Molina’s sentence and remand for resentencing.

                               I. BACKGROUND

A.    Plea Colloquy

      Pursuant to a written plea agreement, Builes-Molina pled guilty to

conspiracy to import five kilograms or more of cocaine and one kilogram or more

of heroin. At the plea colloquy, the government set forth the following facts,

which Builes-Molina admitted as true. From in or about January 2002 through

March 2002, an undercover United States Customs Service agent engaged in a

series of telephone calls with Builes-Molina regarding the importation of cocaine

and heroin into the United States from Colombia through the use of commercial

freight vessels. Builes-Molina agreed with the undercover agent to arrange the

importation of several shipments of cocaine and heroin into the United States via

freight vessels that dock at ports in Bridgeport, Connecticut, and Fernandina,

Florida. Builes-Molina further agreed to pay the undercover agent a transportation

                                         2
fee for off-loading the drug shipments from the freighters and delivering the

cocaine or heroin to one or more of Builes-Molina’s agents.

       During February 2002, Builes-Molina advised the undercover agent about

three drug shipments by three different freighter vessels. The United States

Customs Service officials, acting on the information provided by the undercover

agent, located and seized three separate shipments of drugs from commercial

freighter vessels in Bridgeport, Connecticut. All of the cocaine and heroin from

the three shipments were transported to the Middle District of Florida by Customs

agents for later delivery to Builes-Molina’s co-conspirators, David Rosario and

George A. Portoreal. The amount of drugs involved in these three shipments

totaled 12 kilograms of cocaine and 1.366 kilograms of heroin.1

       On or about March 18, 2002, Rosario and Portoreal traveled from New

York to Jacksonville to meet with an undercover agent. On or about March 20,

2002, Rosario and Portoreal contacted the undercover officer by telephone and

arranged to purchase the cocaine. At the meeting place, Rosario and Portoreal

were arrested. After being advised of his rights, Rosario told law enforcement

officers that he had arranged the purchase of the cocaine for defendant Builes-



       1
       Because Builes-Molina admitted to the drug quantity in these three shipments, there is no
Booker issue as to drug quantity.

                                               3
Molina. Rosario then agreed to cooperate with law enforcement officers and made

a controlled telephone call to Builes-Molina in which Builes-Molina told Rosario

to pay him for the cocaine in a couple of days.

       The district court then adjudged Builes-Molina guilty.

B.     PSI and Sentencing

       The Presentence Investigation Report (“PSI”) recommended a base offense

level of 34, pursuant to U.S.S.G. § 2D1.1(c)(3), because Builes-Molina was

responsible for 11.8 kilograms of cocaine and 1.29 kilograms of heroin.2 The PSI

recommended a four-level enhancement, pursuant to U.S.S.G. § 3B1.1(a), for

Builes-Molina’s role as an organizer or leader of a criminal activity that involved

five or more participants or was otherwise extensive. Specifically, the PSI stated

that the enhancement was appropriate because throughout the conspiracy, Builes-

Molina organized three separate drug shipments from Colombia to the United

States, using shipping vessels, and arranged for their retrieval. Additionally, after

the drugs were obtained, Builes-Molina continued to communicate with the

undercover agent and facilitated four separate drug purchases, in which there were




       2
        Builes-Molina’s drug quantity converted to a marijuana equivalency of 3,657.42 kilograms
of marijuana.

                                               4
a total of six participants, not including Builes-Molina or other unindicted

individuals necessary to achieve the criminal objective.

      The PSI also recommended a three-level reduction, pursuant to § 3E1.1, for

acceptance of responsibility. With a total offense level of 35 and a criminal

history category of I, Builes-Molina’s Guidelines range was 168-210 months’

imprisonment. Builes-Molina objected to the PSI’s recommendation of a four-

level role enhancement.

      At sentencing, Builes-Molina renewed his objection to the four-level role

enhancement, arguing that such an enhancement would be unconstitutional under

Blakely because the facts supporting the enhancement were neither admitted by

Builes-Molina nor found by a jury. The district court agreed with Builes-Molina

and stated that it was “of the opinion that to enhance [Builes-Molina’s sentence]

based on the leadership role is unconstitutional pursuant to Blakely.”

      Nevertheless, the district court allowed the government to present additional

evidence to support the role enhancement. Customs agent Lisa Wainwright

testified in detail about each of the four drug transactions, including Builes-

Molina’s role in the transactions and the associates that Builes-Molina supervised,

including Ronald Pagan, Augustin Vasquez, Melanio Bode, David Rosario, and

George Portoreal.

                                          5
       Ultimately, the district court ruled that Blakely prohibited it from applying

the role enhancement. The district court calculated Builes-Molina’s base offense

level at 34. The district court reduced Builes-Molina’s base offense level by two,

determining that Builes-Molina was entitled to safety-valve relief, pursuant to 18

U.S.C. § 3553(f)(1)-(5); U.S.S.G. §§ 5C1.2 and 2D1.1(b)(6). The district court

further reduced Builes-Molina’s base offense level by three levels for acceptance

of responsibility, pursuant to U.S.S.G. § 3E1.1. With a total offense level of 29

and a criminal history category of I, Builes-Molina’s Guidelines range was 87-108

months’ imprisonment.

       The government objected to application of the safety-valve reduction,

arguing that safety-valve relief is not available if the defendant is a leader or

organizer, and that the district court should have made a finding as to the role

enhancement.3 The district court overruled the government’s objection and

sentenced Builes-Molina to 97 months’ imprisonment and three years’ supervised

release.4 The government appealed.



       3
         The district court actually concluded that Builes-Molina was not a leader or organizer based
on its determination that it could not, under Blakely, apply a role enhancement under U.S.S.G. §
3B1.1.
       4
          The statutory minimum for Builes-Molina’s offense was 120 months’ imprisonment. 21
U.S.C. §§ 960(b)(1)(A) & (B). However, application of the safety-valve provision enabled the
district court to sentence Builes-Molina below the statutory minimum.

                                                 6
                           II. STANDARD OF REVIEW

      Post-Booker, we still review de novo questions of law arising under the

Guidelines, and we still review a district court’s findings of fact for clear error.

United States v. Crawford, 407 F.3d 1174, 1177-78 (11th Cir. 2005).

                                 III. DISCUSSION

      On appeal, the government argues that the district court erred in refusing to

determine Builes-Molina’s leadership role pursuant to U.S.S.G. § 3B1.1 based on

its interpretation that Blakely prohibited such an enhancement. The government

further contends that the refusal to make a finding pursuant to U.S.S.G. § 3B1.1

caused the district court to mistakenly apply the safety-valve provision of U.S.S.G.

§ 5C1.2, and thus improperly allow the district court to grant a two-level reduction

and sentence Builes-Molina below the 120-month statutory minimum sentence.

      “[A]fter Booker, the district courts, while not bound to apply the Guidelines,

must consult those Guidelines and take them into account when sentencing.”

Crawford, 407 F.3d at 1178 (quotation marks, brackets, and citation omitted).

“This consultation requirement, at a minimum, obliges the district court to

calculate correctly the sentencing range prescribed by the Guidelines.” Id.

Further, “[a] misinterpretation of the Guidelines by a district court effectively




                                           7
means that the district court has not properly consulted the Guidelines.” Id.

(internal quotation marks, brackets, and citation omitted).

      In this case, the district court did not properly consult the Guidelines

because the district court erroneously believed it could not constitutionally apply a

role enhancement. While Booker confirmed that Blakely applied to the sentencing

Guidelines, Booker clarified that a sentencing enhancement based on a finding by

a judge does not per se raise a constitutional issue. Booker, 125 S. Ct. at 750. As

explained in United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.), cert.

denied, – S. Ct. – , 2005 WL 483174 (U.S. June 20, 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.” (Emphasis added).

      Thus, the district court erred in determining that it could not constitutionally

apply the role enhancement and thus did not properly consider the Guidelines.

Accordingly, we must vacate Builes-Molina’s sentence and remand this case to the

district court for resentencing. See Crawford, 407 F.3d at 1183 (“Because district

courts are required under Booker to consult the Guidelines, and because true

consultation cannot be based on an erroneous understanding of the Guidelines, the

district court erred in failing to consult properly the Guidelines.”).

                                           8
      On remand, the district court must calculate an advisory Guidelines range

and must consider whether the evidence is sufficient to support the government’s

contention that Builes-Molina was a leader or organizer, thereby triggering the

role enhancement. After the district court calculates the Guidelines range, the

district court must sentence Builes-Molina considering that range and “other

statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).” Booker, 125

S. Ct. at 757. We vacate Builes-Molina’s sentence in its entirety and remand for

resentencing.

      VACATED AND REMANDED.




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