                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                       FILED
                       ________________________               U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                              No. 04-14178                          JUNE 14, 2005
                                                                 THOMAS K. KAHN
                          Non-Argument Calendar
                                                                      CLERK
                        ________________________

                  D.C. Docket No. 04-00003-CR-4-RH-WCS

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

     versus

MAURICE PERNELL MCKINNEY,
a.k.a. Maurise McKinney
                                                       Defendant-Appellant.

                       __________________________

              Appeal from the United States District Court for the
                         Northern District of Florida
                        _________________________
                               (June 14, 2005)

Before ANDERSON, HULL and FAY, Circuit Judges.

PER CURIAM:
      Maurice Pernell McKinney appeals his convictions and his 300-month

sentence for possession with intent to distribute cocaine base, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(C) (“Count 2”); possession of firearms in furtherance of

a drug-trafficking offense, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i),

(c)(1)(B)(i), and 2 (“Count 3”); and possession of a firearm and ammunition by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (“Count 5”).

McKinney argues on appeal that (1) his trial counsel provided ineffective

assistance, (2) the district court abused its discretion in denying his motion to

withdraw his guilty plea to the § 924(c) offense in Count 3, (3) the court erred in

imposing a mandatory minimum ten-year consecutive sentence based on its

judicial finding that McKinney possessed an Intratec 9 millimeter semi-automatic

pistol, and (4) the court violated McKinney’s Sixth Amendment right to a jury trial

in considering the federal guidelines in sentencing him, in light of Blakely v.

Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United

States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the

reasons set forth more fully below, we affirm McKinney’s convictions and

sentence.

      A federal grand jury returned a superseding indictment, charging McKinney

with the above-referenced offenses and listing the firearms McKinney allegedly

                                          2
possessed in furtherance of a conspiracy to distribute cocaine base in Count 3 of

this indictment, that is, a Rossi .38 Special revolver (“revolver”), and an Intratec 9

millimeter semi-automatic pistol (“assault weapon”).1 On April 26, 2004,

McKinney pled guilty to Count 5 of his superseding indictment, without the

benefit of a plea agreement. During McKinney’s change-of-plea hearing, he

conceded that he had both knowledge of, and access to, the revolver, the assault

weapon, and the ammunition. McKinney also advised the court that, although he

wished to have a trial on the remaining counts, he was waiving his right to a trial

by jury because these offenses involved primarily legal issues.

       On May 6, 2004, the day McKinney’s bench trial was scheduled to

commence on his remaining charges, he plead guilty to Counts 2 and 3, with the

unwritten understanding that the government was agreeing to dismiss Count 1 of

his superseding indictment. After confirming that McKinney was competent to

plead guilty and understood the rights he was waiving by pleading guilty, the court

explained the remaining charges to McKinney. As part of this discussion,

McKinney’s counsel informed the court that (1) whether McKinney received a

mandatory minimum consecutive sentence of five or ten years’ imprisonment for

       1
           Codefendant Rollins was charged in this same superseding indictment with
conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 846 (“Count 1"); a § 924(c) offense (“Count 3"); and a § 922(g)(1)
offense (“Count 4").
                                                3
his § 924(c) offense in Count 3 depended on whether the firearm he possessed was

the revolver or the assault weapon,2 (2) the parties had agreed that the court would

decide this issue at sentencing, and (3) McKinney wished to have his plea

accepted. McKinney’s counsel noted, however, that he was not certain whether

“possession” could be a sentencing factor. After discussing the possible

implications of Apprendi, the court and the parties concluded that McKinney’s

admission to possessing the revolver and his leaving for the court’s determination

the issue whether he also possessed the assault weapon would not result in a

constitutional violation.

           The government then proffered that, had the case proceeded to trial, it

would have proven that (1) officers with the Leon County Sheriff’s Office were

attempting to locate Rollins, who was a fugitive; (2) as part of this investigation, a

confidential information (“CI”) arranged a meeting with Rollins at a McDonald’s

restaurant, at which time the CI was to buy cocaine base from Rollins; (3) when

the officers arrived at the McDonald’s parking lot, they observed a vehicle in



       2
             “[A]ny person who, during an in relation to any crime of violence or drug trafficking
crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possess a firearm,
shall, in addition to the punishment provided for such crime of violence or drug trafficking
crime—(i) be sentenced to a term of imprisonment of not less than 5 years.” See 18 U.S.C.
§ 924(c)(1)(A)(i). However, “[i]f the firearm possessed by a person convicted of a violation of
this subsection—(i) is a short-barreled rifle, short-barreled shot-gun, the person shall be
sentenced to a term of imprisonment of not less than 10 years.” See 18 U.S.C. § 924(c)(1)(B)(i).
                                                 4
which Rollins was in the passenger seat and McKinney was in the driver seat;

(4) when Rollins went inside the restaurant, the officers arrested him;

(5) the officers then went to the vehicle in which McKinney was sitting and

arrested him; (6) during a search of this vehicle, the officers recovered both the

assault weapon and the resolver from in between the front driver and passenger

seats; (7) the officers also recovered rounds of .38 ammunition from McKinney’s

pocket, proof that the vehicle was owned by McKinney, and cocaine base from

Rollins’s pocket; and (8) McKinney stated that he and Rollins had (i) driven

around in the vehicle that day, (ii) sold cocaine base to someone, and (iii) driven to

the McDonald’s restaurant to sell more cocaine base to the CI.

      McKinney generally verified that these facts were correct, stating that,

although he did not own either of the firearms, he had on his person ammunition

for the pistol, he knew that Rollins had both of the firearms, and the firearms were

in McKinney’s vehicle while he and Rollins conducted drug transactions. The

court then informed McKinney of the potential consequences of his plea,

including that he would be subject to a consecutive mandatory minimum sentence

of either five or ten years’ imprisonment, dependent on whether the court

determined that he possessed only the revolver or both the revolver and the assault

weapon. McKinney also agreed that (1) no one had promised him anything in

                                          5
exchange for his plea, (2) no one had coerced him into pleading guilty, (3) he

understood that he would not be permitted to withdraw his plea, and (3) he was

satisfied with his counsel’s representation. The court accepted McKinney’s plea,

finding that McKinney was competent to plead guilty, he understood the nature of

his charges and the consequences of his plea, a sufficient factual basis supported

the plea, and McKinney entered into the plea freely and voluntarily, after

consulting with competent counsel.

       McKinney’s presentence investigation report (“PSI”) calculated his base

offense level for Counts 2 and 5 as 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A).3

The probation officer recommended a two-level upward adjustment, pursuant to

U.S.S.G. § 2K2.1(b)(4), because the assault weapon previously had been reported

stolen by the owner, and a two-level downward adjustment, pursuant to U.S.S.G.

§ 3E1.1(a), for acceptance of responsibility. Based on the officer’s determination

that McKinney was subject to an enhanced sentence under 18 U.S.C. § 924(e)

(armed career criminal), and that McKinney possessed a firearm in connection


       3
           The PSI reflects that Count 2 (U.S.S.G. § 2D1.1) and Count 5 (U.S.S.G. § 2K2.1) were
grouped together, pursuant to U.S.S.G. § 3D1.2(c). Because the use of § 2K2.1 resulted in the
highest offense level, it was used as the offense level for the grouped offenses, pursuant to
U.S.S.G. § 3D1.3(a). In addition, because McKinney had to serve a mandatory minimum
statutory sentence of ten years’ imprisonment for his § 924(c) offense in Count 3 of his
superseding indictment, this statutory sentence was his guideline sentence for Count 3, pursuant
to U.S.S.G. § 2K2.4(b), and Count 3 was exempted from the grouping, pursuant to U.S.S.G. §
3D1.1(b).
                                               6
with a controlled-substance offense, he applied an enhanced offense level of 34,

pursuant to U.S.S.G. § 4B1.4(a) and (b)(3)(A). After the officer adjusted this

enhanced offense level downwards two levels for acceptance of responsibility,

pursuant to § 3E1.1(a), McKinney had a total offense level of 32 for Counts 2 and

5. With a criminal history category of VI, McKinney’s resulting guideline range

for these counts was 210 to 262 months’ imprisonment. McKinney, however,

also was subject to a consecutive mandatory minimum statutory sentence of either

five or ten years’ imprisonment for his § 924(c) offense in Count 3.

       McKinney objected to the probation officer’s consideration of the assault

weapon in calculating his guideline range and to his mandatory minimum statutory

sentence, arguing that Rollins, instead, owned and possessed this firearm.

McKinney also generally raised an objection to the court’s determination of this

issue in light of Blakely. The probation officer responded that, because McKinney

aided and abetted Rollins in Rollins’s use of the assault weapon, he should be held

accountable for this conduct. The probation officer noted, as well, that, because

McKinney was a career offender, this objection had no real impact on his

guideline sentence.4

       4
           The probation officer appears to have mis-spoken here because McKinney was not
deemed a career offender who was sentenced under U.S.S.G. § 4B1.1, but rather was sentenced
as an armed career criminal under U.S.S.G. § 4B1.4. Under either enhancement, however, the
calculations under Chapter 2 would be rendered irrelevant.
                                             7
      On July 26, 2004, prior to sentencing, McKinney filed a motion to withdraw

his guilty plea to Count 3, arguing that he plead guilty to Count 3 based on his trial

counsel’s misadvice that the issue whether he possessed the assault weapon was a

sentencing factor, instead of an element of the offense that the government had to

prove beyond a reasonable doubt. McKinney also argued in a written motion that

the court should conclude that the federal guidelines were unconstitutional in light

of Blakely. In doing so, McKinney also requested that the court determine a

sentence that “adequately consider[ed] the circumstances of the offense and [his]

personal circumstances,” instead of “merely complying with the mechanical

calculations of the [g]uidelines.”

      On July 30, 2004, at a joint sentencing hearing for McKinney and Rollins,

McKinney renewed his motion to withdraw his plea as to Count 3 of the

superseding indictment. McKinney’s counsel explained that, in advising

McKinney that his possession of the assault weapon in Count 3 was a sentencing

factor, counsel “had it wrong.” After the government objected to this motion, the

court denied it. The court discussed that (1) the Supreme Court’s decision in

Blakely did not effect whether a defendant could waive his right to a jury trial,

(2) McKinney effectively waived this right, and (3) both his waiver of his right to

a trial and his plea were knowing, voluntary, and intelligent.

                                          8
      The court next confirmed that McKinney’s only objections to the PSI were

his Blakely objection and his argument that the court should not determine that he

possessed the assault weapon. The court also clarified that the assault-weapon

issue would not affect the guideline calculation; rather, it would affect the

mandatory minimum sentence for Count 3. In addition to the court considering as

relevant evidence McKinney’s admissions during his two change-of-plea hearings,

the government stipulated that Rollins brought the assault weapon to McKinney’s

car on the day in question.

      McKinney then argued that, because the record reflected that his connection

with the assault weapon was “remote,” the government did not show that he

possessed the assault weapon in furtherance of the drug offense. Citing to

Bazemore v. United States, 138 F.3d 947 (11th Cir. 1998), the government

responded that, by driving Rollins around to commit drug transactions and

allowing the firearms to be in his vehicle, McKinney aided and abetted Rollins’s

acts and, thus, should be held accountable for both of the firearms they possessed

in furtherance of these acts. McKinney replied that the facts in Bazemore were

distinguishable because the defendant in that case had a greater involvement in the

drug transactions and, thus, benefitted more from the presence of the firearms.




                                          9
       The court concluded that McKinney, as an aider or abettor, possessed the

assault weapon in furtherance of the drug-trafficking offense. The court also

clarified that McKinney’s guideline range for Counts 2 and 5 was 210 to 262

months’ imprisonment,5 and that his total mandatory minimum sentence was 300

months’ imprisonment.

       McKinney next argued that the court should determine that the federal

guidelines were unconstitutional and only impose his total mandatory minimum

statutory sentence. In the alternative, he argued that the court should impose a

sentence at the bottom of his total guideline range, that is 330 months’

imprisonment,6 because (1) he was “remotely connected to [the offenses];” (2) he

had not committed another offense for 11 years, albeit because he had been

incarcerated; and (3) he offered to cooperate with the government.

       Explaining in detail why it believed that the Supreme Court’s decision in

Blakely was applicable to the federal guidelines, the court determined, over the

government’s objection, that the guidelines were unconstitutional, but that courts

still should consider them in an advisory fashion in sentencing defendants. The

       5
          Although the transcript states that the sentencing range was 201 to 262 months’
imprisonment, this statement appears to be a clerical error.
       6
           This total guideline range results from combining McKinney’s guideline range of 210
to 262 months’ imprisonment in Counts 2 and 5, with his consecutive statutory sentence of 10
years’ (120 months’) imprisonment in Count 3.
                                              10
court also explained that, although it had considered McKinney’s guideline range,

it had concluded that McKinney’s total mandatory minimum statutory sentence of

25 years’ imprisonment was appropriate. In doing so, the court expressly stated

that it had considered McKinney’s attempts to cooperate, the fact that the instant

conduct involved “a fairly limited drug offense,” and that Rollins’s guideline

range was significantly less primarily because he plead guilty several days before

McKinney’s plea. After concluding that the PSI was accurate, the court sentenced

McKinney to a total sentence of 300 months’ imprisonment (25 years’

imprisonment), 5 years’ supervised release, and a $300 special assessment fee.

Issue 1:     Claim of ineffective assistance

      As a preliminary issue, McKinney argues that the record shows that his trial

counsel’s performance was deficient because his counsel, in arguing that the

district court should allow McKinney to withdraw his guilty plea, admitted that he

misadvised McKinney on the elements of his § 924(c) offense. To successfully

establish a claim of ineffective assistance of counsel, a plaintiff must prove that

(1) his counsel’s performance was deficient, falling below an objective standard of

reasonableness; and (2) this deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80

L.Ed.2d 674 (1984).

                                          11
      We, however, generally will not consider on direct appeal claims of

ineffective assistance of counsel if the district court neither entertained this claim,

nor developed a factual record. United States v. Bender, 290 F.3d 1279, 1284

(11th Cir. 2002) (citing United States v. Khoury, 901 F.2d 948, 969 (11th Cir.

1990)). We have explained that, if there is insufficient evidence in the record to

consider this claim on direct appeal, it should be resolved in a 28 U.S.C. § 2255

proceeding, where an evidentiary hearing may be held. United States v. Camacho,

40 F.3d 349, 355 (11th Cir. 1994).

      Here, in moving the court to withdraw McKinney’s guilty plea, McKinney’s

counsel stated, in a conclusory fashion, that he “got it wrong” in advising

McKinney that McKinney’s possession of the assault weapon was a sentencing

factor, instead of an element of his § 924(c) offense. The record, however, is not

sufficiently developed to determine either whether McKinney’s counsel’s

performance was deficient, or whether McKinney was prejudiced by this

performance. Thus, we will not review on direct appeal McKinney’s claim of

ineffective assistance of counsel. See Bender, 290 F.3d at 1284.




                                          12
Issue 2:     Denial of McKinney’s motion to withdraw his guilty plea to
             possession of firearms in furtherance of a drug-trafficking offense

      McKinney also argues that the court erred in denying his motion to

withdraw his plea of guilty to his § 924(c) offense in Count 3 of his superseding

indictment because, as discussed above, his counsel admitted on the record that he

believed that he misadvised McKinney that possession of the assault weapon was

a sentencing factor, instead of an element of the crime to be determined by a jury

beyond a reasonable doubt. McKinney also contends that, because of this

misadvice, he neither understood the nature of this charge, nor the potential

consequences of his plea. McKinney asserts that the court did not conserve

judicial resources by denying this motion because a trial would have been short,

consisted primarily of stipulations, and involved only one witness. Finally,

McKinney argues that the government would not have been prejudiced by the

court’s granting of this motion because (1) the amount of evidence was not

substantial, and (2) he filed the motion shortly after pleading guilty.

      We review the denial of a motion to withdraw a guilty plea for an abuse of

discretion; thus, it only will reverse a court’s denial of a motion to withdraw if it is

“arbitrary and unreasonable.” United States v. Cesal, 391 F.3d 1172, 1179 (11th

Cir. 2004) (quotation omitted). A defendant may withdraw a guilty plea before a


                                          13
sentence is imposed if he shows a “fair and just reason” for the withdrawal. Id.

(quoting Fed.R.Crim.P. 11(d)(2)(B)). “To determine whether the defendant has

given a fair and just reason for withdrawal, the district court examines the totality

of the circumstances, including: ‘(1) whether close assistance of counsel was

available; (2) whether the plea was knowing and voluntary; (3) whether judicial

resources would be conserved; and (4) whether the government would be

prejudiced if the defendant were allowed to withdraw his plea.’” Cesal, 391 F.3d

at 1179 (quotation omitted).

      To the extent McKinney is arguing that the court should have permitted him

to withdraw his plea to the § 924(c) offense in Count 3 because his counsel

misadvised him that the type of firearm he possessed was a sentencing factor,

instead of an element of the offense for the jury to determine beyond a reasonable

doubt, this argument is without merit. The Supreme Court clarified in Harris v.

United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), that

§ 924(c)(1)(A) does not specify elements of a crime that must be charged in an

indictment, submitted to the jury, or proved beyond a reasonable doubt. Id., 536

U.S. at 552-56, 122 S.Ct. at 2411-14. The Harris Court explained that an increase

in the defendant’s statutory mandatory minimum sentence based on a judicial

finding that the defendant “brandished” the firearm, pursuant to § 924(c)(1)(A)(ii),

                                         14
“[did] not evade the requirements of the Fifth and Sixth Amendments. Congress

‘simply took one factor that has always been considered by sentencing courts to

bear on punishment . . . .and dictated the precise weight to be given that factor.”

Id. at 568, 122 S.Ct. at 2420. The Harris Court also discussed that, when § 924(c)

was amended in 1998, numbered subsections were added, “describing, as

sentencing factors often do, “special features of the manner in which” the statute’s

“basic crime” could be carried out,” and only altering the mandatory minimum

sentences for the court to impose. Id. at 554, 122 S.Ct. at 2412-13.

      Instead of whether the defendant “brandished” the firearm under

§ 924(c)(1)(A)(ii), the subsection at issue here—§ 924(c)(1)(B)(i)—involves the

type of firearm possessed. (See R1-18). In Castillo v. United States, 530 U.S.

120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), the Supreme Court, in examining a

prior version of § 924(c)(1), determined that its provisions on types of firearms

defined separate crimes that had to be proven to a jury beyond a reasonable doubt.

See id., 530 U.S. at 123-24, 120 S.Ct. at 2092-93. However, in reaching this

determination, the Castillo Court relied heavily on the structure of the former

§ 924(c)(1), that is, that “Congress placed the element of ‘uses or carries a firearm’

and the word ‘machinegun’ in a single sentence, not broken up with dashes or




                                         15
separated into subsections.” See United States v. Riley, 250 F.3d 1303, 1305

(11th Cir. 2001) (quoting Castillo, 530 U.S. at 124-25, 120 S.Ct. at 2093).

       Because the current version of § 924(c)(1)(B)—the version applicable in

the instant case—dictates in separate subsections applicable mandatory statutory

sentences that result dependent on the type of firearm involved in the offense, we

conclude, based on the Supreme Court’s similar analysis in Harris, that this

subsection only involves a sentencing factor. See 18 U.S.C. § 924(c)(1)(B)

(2004); see also Harris, 536 U.S. at 554, 122 S.Ct. at 2412-13.7 Moreover, we

have determined that the Supreme Court’s analysis of § 924(c)(1) applies not only

to direct conduct of defendants, but also to conduct that they aid or abet. United

States v. Williams, 334 F.3d 1228, 1232-33 (11th Cir. 2003). Thus, McKinney’s

counsel did not misadvise him that the type of weapon he possessed in Count 3 of

his superseding indictment, albeit through a theory of aiding and abetting, was a

sentencing factor for the court to determine.




       7
             Although we have not directly addressed whether the type of firearm involved under
the current version of § 924(c)(1)(B)(i) is a sentencing issue or an element of the offense, other
circuits that have addressed this issue have determined that it involves a sentencing issue. See
United States v. Harrison, 272 F.3d 220, 225 (4th Cir. 2001) (sentencing factor); United States v.
Sandoval, 241 F.3d 549, 551-52 & n.1 (7th Cir. 2001) (same); United States v. Cavely, 318 F.3d
987, 1000 (10th Cir. 2003) (same); But see United States v. Bundy, 239 F.3d 802, 807 (6th Cir.
2001) (applying Castillo to revised § 924(c)(1)(B), and concluding that the type of weapon used
is an element of the offense).
                                               16
       Examining the other factors applicable in determine whether McKinney

showed a “fair and just reason” for his motion to withdraw his plea to Count 3, the

government arguably would not have been prejudiced substantially if the court had

granted McKinney’s motion to withdraw because only a little more than two

months elapsed between his pleading guilty to Count 3 on May 6, 2004, and his

filing his motion to withdraw this plea on July 26, 2004. On the other hand,

regardless of the limited number of witnesses involved and estimated length of the

trial, the court’s denial of McKinney’s motion to withdraw conserved judicial

resources. See United States v. Freixas, 332 F.3d 1314, 1319 (11th Cir. 2003)

(concluding that the court’s decision denying the defendant’s motion to withdraw

“plainly served the goal of conserving judicial resources, as it obviated the need

for a full trial on the merits in this case”).

       Moreover, McKinney failed to show that his plea was not knowing and

voluntary. “When a district court accepts a guilty plea, it must ensure that the

three core concerns of [Fed.R.Crim.P. 11] have been met: (1) the guilty plea must

be free from coercion; (2) the defendant must understand the nature of the charges;

and (3) the defendant must know and understand the consequences of his guilty




                                            17
plea.” See Freixas, 332 F.3d at 1318 (internal quotation and marks omitted).8

Here, similar to the facts in Freixas, the court, before accepting McKinney’s plea,

confirmed that McKinney was competent to plead guilty and understood the rights

he was waiving by pleading guilty. The court also verified that McKinney

(1) understood his remaining charges; (2) knew of the potential consequences of

his plea, including that he would be subject to a consecutive mandatory minimum

sentence of either five or ten years’ imprisonment, dependent on whether the court

determined that he possessed the assault weapon; and (3) had not been threatened

or coerced into pleading guilty. In addition, the court verified that McKinney’s

plea was supported by a sufficient factual basis. See Fed.R.Crim.P. 11(b)(3)

(before accepting a guilty plea, a district court “must determine that there is a

factual basis for the plea”). Thus, the court did not abuse its discretion in denying

McKinney’s motion to withdraw his plea to Count 3 of his superseding

indictment. See Cesal, 391 F.3d at 1179.




       8
           We recently have reiterated that, although the voluntariness of a guilty plea is
reviewed de novo, we “will not overturn a judge’s decision to accept a guilty plea unless there
has been an abuse of discretion.” See United States v. Frye, 402 F.3d 1123, 1126-27 (11th Cir.
2005) (concluding that the record showed that the defendant understood the charges against him
and voluntarily and knowingly plead guilty when the defendant stated that he (1) was satisfied
with his counsel’s representation, (2) was not coerced into pleading guilty, and (3) understood the
charges and consequences of pleading guilty).
                                               18
Issue 3:     Mandatory minimum sentence in Count 3

      McKinney next argues that the court erred in concluding that he possessed

the assault weapon when the undisputed evidence showed that he only drove

Rollins to the drug transaction, did not get out of the vehicle, and did not receive

any benefit from the drug transaction. McKinney also contends that court’s

determination that he facilitated the carrying of this firearm rested on an improper

finding of “guilt by association.” McKinney concludes, as such, that the court

erred in imposing a consecutive mandatory minimum sentence under § 924(c).

      As a preliminary matter, if we construe McKinney’s argument as

challenging the fact that the court, instead of a jury, determined this issue, the

Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000), that “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.” Id., 530 U.S. at

490, 120 S.Ct. at 2362-63. Before McKinney’s sentencing hearing, the Supreme

Court revisited that rule in Blakely, in the context of Washington state’s

sentencing guideline scheme, and clarified that “the ‘statutory maximum’ for

Apprendi purposes is the maximum sentence a judge may impose solely on the

basis of the facts reflected in the jury verdict or admitted by the defendant. . . . In

                                          19
other words, the relevant ‘statutory maximum’ is not the maximum sentence a

judge may impose after finding additional facts, but the maximum he may impose

without any additional findings.” Blakely, 542 U.S. at ___, 124 S.Ct.at 2537

(emphasis in original). Applying these principles, the Court held that Blakely’s

sentence—which was enhanced under the state guidelines based on the sentencing

court’s additional finding by a preponderance of the evidence that Blakely

committed his kidnaping offense with deliberate cruelty—violated the Sixth

Amendment. Id. at ___, 124 S.Ct. at 2534-38.

       We, however, have concluded that Blakely “does not undermine the validity

of minimum mandatory sentences, at least not where the enhanced minimum does

not exceed the non-enhanced maximum.” Spero v. United States, 375 F.3d 1285,

1286 (11th Cir. 2004), cert. denied, 125 S.Ct. 1099 (2005), and cert. denied, 125

S.Ct. 1345 (2005). We explained in Spero that “Blakely, like Apprendi, explicitly

distinguished minimum mandatory sentences from the circumstances involved in

those cases and indicated that McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct.

2411, 91 L.Ed.2d 67 (1986),[9] is still good law.” Spero, 375 F.3d at 1286. In the


       9
           In McMillan, the Supreme Court held that imposition of a minimum mandatory
sentence predicated upon a fact found by the judge by a preponderance of the evidence violates
neither Due Process nor the jury trial guarantee of the Sixth Amendment, so long as the statutory
maximum authorized by the jury’s verdict is not exceeded. See McMillan, 477 U.S. at 87-88, 93,
106 S.Ct. at 2416-17, 2420.
                                               20
instant case, the statutory maximum for McKinney’s § 924(c) offense, without

reference to his possession of the assault weapon, was life imprisonment. See

Harris, 536 U.S. at 552-56, 122 S.Ct. at 2411-14 (holding that the current version

of § 924(c)(1) defines one offense, with a penalty ranging from five years’ to life

imprisonment). Because McKinney’s total 300-month sentence did not exceed

this maximum statutory sentence, no Apprendi error resulted.

       Furthermore, to the extent McKinney is arguing that the court erred in

accepting his plea and sentencing him in Count 3 because his codefendant owned

the assault weapon and brought it into McKinney’s vehicle, the Supreme Court

determined in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d

472 (1995), that a conviction for “use” under § 924(c) requires “active

employment of the firearm,” as opposed to mere possession. Id., 516 U.S. at 143-

45, 116 S.Ct. at 506. We, however, have concluded that, “[a]lthough the Bailey

decision narrowed the scope of conduct for “use” of a firearm under § 924(c),

nothing in the opinion suggests that it was intended to provide criminals with

immunity from well-established doctrines of criminal law,” including the theory of

aiding and abetting.10 Bazemore, 138 F.3d at 949.



       10
          “Whoever . . . aids, abets, counsels, commands, induces or procures [a crime’s]
commission, is punishable as a principal.” See 18 U.S.C. § 2(a).
                                             21
       In Bazemore, we discussed that, to prove aiding and abetting, the

government must show “that a substantive offense was committed, that the

defendant associated himself with the venture, and that he committed some act

which furthered the crime.” Id. Thus, § 924(c) does not permit “guilt by

association.” Id. (quoting United States v. Thomas, 987 F.2d 697, 702 (11th Cir.

1993)). Despite this burden, however, we determined that the government in

Bazemore produced ample evidence linking the defendant to the gun because the

defendant (1) drove both the codefendants and the gun to a drug deal, and

(2) knowingly accepted the gun’s protection while he was inspecting the

marijuana. Bazemore, 138 F.3d at 749. In reaching this conclusion, we also

explained that (1) “once knowledge on the part of the aider and abettor is

established, it does not take much to satisfy the facilitation element”; (2) as the

driver of the vehicle, the defendant was “vital to the transportation of the weapon

during the commission of the drug crime”; and (3) the defendant could not

“knowingly benefit from the protection afforded by the firearm carried by his

companion and then subsequently evade criminal liability for its presence.” Id.11


       11
             We note, however, that, unlike McKinney’s challenge to his mandatory minimum
sentence, both Bailey and Bazemore involved attacks on the defendants’ convictions for using or
carrying a firearm in connection with a drug-trafficking crime, whereby the government had the
burden of showing guilt beyond a reasonable doubt. See Bailey, 516 U.S. at 138-39, 116 S.Ct. at
503; see also Bazemore, 138 F.3d at 948.
                                              22
       Here, McKinney admitted during his change-of-plea hearing that (1) there

were two firearms in the vehicle, (2) he knew of their presence, and (3) he drove

the vehicle while they sold drugs earlier in the day. McKinney also stated that,

although he did not own either firearm, he had bullets for the revolver, which was

recovered from the same general location in the vehicle as the assault weapon.

Moreover, McKinney conceded during his change-of-plea hearing on his

§ 922(g)(1) charge in Count 5 that the firearms were “where [he] could get to them

if [he] wanted to.” Thus, similar to the facts in Bazemore, McKinney knowingly

provided transportation for a drug transaction and accepted protection from the

assault weapon. The court, therefore, did not err in accepting McKinney’s plea to

Count 3 and in sentencing him based on his possession of the assault weapon

under the theory of aiding and abetting. See Bazemore, 138 F.3d at 749; see also

Rutledge v. United States, 138 F.3d 1358, 1559 (11th Cir. 1998) (concluding that

the defendant admitted to all of the elements required under the theory of aiding

and abetting by admitting to the government’s stipulation that the weapon was in

his possession and that it was used in connection with drug activities).12

       12
              As the district court recognized, we also have determined that the Supreme Court’s
decision in Bailey did not negate the applicability of the doctrine established in Pinkerton v.
United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 1184-85, 90 L.Ed.2d 1489 (1946). See
United States v. Diaz, 248 F.3d 1065, 1099 (11th Cir. 2001). Thus, criminal defendants remain
liable for the “reasonably foreseeable” actions of the co-conspirators—including the using or
carrying of a firearm during the commission of a crime of violence. See id.
                                               23
Issue 4:     Blakely/Booker Issue

      In a brief he prepared prior to the Supreme Court’s decision in Booker,

McKinney argues in this last issue that the district court committed a Blakely

violation when it used the federal guidelines as an artificial guide to “fashion”

McKinney’s sentence. McKinney contends that courts may not apply the

guidelines, even in an advisory fashion, because they are facially unconstitutional.

Without citing to the record or caselaw, McKinney further asserts that the court

“would have given [him] a much lighter sentence had it not used the guideline as a

measuring stick,” and that court should have applied his consecutive mandatory

minimum statutory sentences because “mandatory minimums, etc., were intended

by Congress to act in conjunction with the Guidelines.”

      Because McKinney timely raised a Blakely objection in the district court,

we review his Blakely/Booker claim on appeal de novo, but reverse only for

harmful error. See United States v. Paz, No. 04-14829, manuscript op. at 4 (11th

Cir. April 5, 2005) (citation omitted). “To find harmless error, [this Court] must

determine that the error did not affect the substantial rights of the parties.” Paz,

No. 04-14829, manuscript op. at 5 (quotation omitted). We further explained in

Paz as follows:




                                          24
      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. This standard is only met where it is clear beyond
      a reasonable doubt that the error complained of did not contribute to
      the sentence obtained. The burden is on the government to show that
      the error did not affect the defendant’s substantial rights.

Id. (internal quotations and marks omitted).

      As discussed above, before McKinney’s sentencing hearing, the Supreme

Court, in the context of Washington state’s sentencing guideline scheme, held in

Blakely that “the ‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant. . . . In other words, the relevant ‘statutory

maximum’ is not the maximum sentence a judge may impose after finding

additional facts, but the maximum he may impose without any additional

findings.” Blakely, 542 U.S. at ___, 124 S.Ct.at 2537 (emphasis in original). In a

footnote, however, the Supreme Court explicitly remarked that “[t]he Federal

Guidelines are not before us, and we express no opinion on them.” Id. at ___ n.9,

124 S.Ct. at 2538 n.9.

      While the instant case was pending on appeal, the Supreme Court issued its

decision in Booker, finding “no distinction of constitutional significance between

the Federal Sentencing Guidelines and the Washington procedures at issue” in



                                         25
Blakely. Booker, 543 U.S. at ___, 125 S.Ct. at 749. Resolving the constitutional

question left open in Blakely, the Supreme Court held that the mandatory nature of

the federal guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial. Id. at ___,125 S.Ct. at 749-51. In extending

its holding in Blakely to the Guidelines, the Court explicitly reaffirmed its

rationale in Apprendi that “[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 guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” Id. at ___, 125 S.Ct. at 756.

      In a second and separate majority opinion, the Court in Booker concluded

that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of

1984, the appropriate remedy was to “excise” two specific sections—18 U.S.C.

§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)

and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de

novo review of departures from the applicable guideline range)—thereby

effectively rendering the Sentencing Guidelines advisory only. Id. at ___, 125

S.Ct. at 764. Thus, the guidelines range is now advisory; it no longer dictates the

final sentencing result but instead is an important sentencing factor that the




                                         26
sentencing court is to consider, along with the factors contained in 18 U.S.C.

§ 3553(a).13 Id. at ___, 125 S.Ct. at 764-65).

       Following the Supreme Court’s decision in Booker, and on remand, we re-

examined in United States v. Reese, 397 F.3d 1337 (11th Cir. 2005), a defendant’s

guideline sentence that had been enhanced, over objection, because the defendant

possessed a firearm in connection with another felony. Id. at 1337.14 Concluding

that the defendant’s sentence was in violation of the Sixth Amendment, we

vacated and remanded his case and ordered resentencing consistent with the

Supreme Court’s opinions in Booker. Id. at 1338.

       In Paz, we similarly examined a Blakely/Booker challenge to a six-level

enhancement based on the district court’s factual finding, which was not admitted


       13
              These other relevant factors in § 3553(a) include: “(1) the nature and circumstances
of the offense and the history and characteristics of the defendant; (2) the need for the sentence
imposed–(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and (D) to provide the defendant
with needed educational or vocational training, medical care, or other correctional treatment in
the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the
sentencing range established for . . . (A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines . . .; (5) any pertinent policy
statement []; (6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and (7) the need to provide
restitution to any victims of the offense.” See 18 U.S.C. § 3553(a)(1)-(7).
       14
            Prior the Supreme Court’s issuance of its decision in Booker, we had determined that
no error had occurred because Blakely did not apply to the federal guidelines. See United States
v. Reese, 382 F.3d 1308 (11th Cir. 2004), judgment vacated by Reese v. United States, ___ U.S.
___, 125 S.Ct. 1089, 160 L.Ed.2d 1058 (2005).
                                                27
by the defendant, that the amount of loss from the defendant’s offense of

conviction was between $30,000 and $70,000, pursuant to U.S.S.G.

§ 2B1.1(b)(1)(D). Paz, No. 04-14829, manuscript op. at 2. We determined that,

because the defendant’s sentence was enhanced, under a mandatory guidelines

system, based on facts found by the judge, the defendant’s Sixth Amendment right

to a jury trial was violated. Id. at 5. Moreover, we determined that the

government could not show that this error was harmless beyond a reasonable

doubt because it was evident from the sentencing transcript that, had the court

used the guidelines in an advisory fashion, Paz’s sentence would have been

shorter. Id. at 6.15 We concluded, as such, that the constitutional error affected the

defendant’s substantial rights, and it remanded for resentencing consistent with

Booker. Id.

       To the extent the court calculated McKinney’s guideline range based on

prior convictions or facts to which McKinney admitted during his change-of-plea

hearings, no error, harmless or otherwise, occurred. See United States v. Shelton,

400 F.3d 1325, 1329-30 (11th Cir. 2005) (concluding that the court did not err

when it enhanced defendant’s sentence based on (1) facts admitted by the


       15
              During the defendant’s sentencing hearing in Paz, the district court explicitly stated
that, if the guidelines were found unconstitutional, if would have sentenced the defendant to a
shorter term of imprisonment. See Paz, No. 04-14829, manuscript op. at 4.
                                                 28
defendant, or (2) his prior convictions)16; see also United States v. Camacho-

Ibarquen, No. 04-11155, slip op. at 1757-58 (11th Cir. March 30, 2005) (court did

not violate the defendant’s Sixth Amendment rights by applying an enhancement

based on his prior convictions); United States v. Orduno-Mireles, No. 04-12630,

slip op. at 1792-93 (11th Cir. April 6, 2005) (Booker is not implicated when a

defendant’s sentence is enhanced based on a prior conviction). More importantly,

unlike the facts in Reese and Paz, the court here only treated the federal guidelines

as advisory. Indeed, the court sentenced McKinney to his total minimum

mandatory statutory sentence of 300 months’ imprisonment, instead of within his

total guideline range of 330 to 382 months’ imprisonment. No violation of the

Sixth Amendment or Booker, therefore, occurred. See Booker, 543 U.S. at ___,

125 S.Ct. at 756.17



       16
              Although we determined that no Sixth Amendment violation occurred in Shelton, we
concluded that Booker error occurred and that this error was prejudicial under the third prong of
plain-error review because the district court considered the guidelines binding as opposed to
advisory, and the defendant showed on appeal that “there [was] a reasonable probability [that]
the district court would have imposed a lesser sentence [] if it had not felt bound by the
[g]uidelines.” See Shelton, 400 F.3d at 1330-32. On the other hand, as discussed below, no non-
constitutional error occurred in the instant case because the district court did not treat the
guidelines as mandatory.
       17
             In addition, because the district court correctly imposed the statutory mandatory
minimum sentence, any error in the guideline calculations is harmless. See United States v.
Raad, No. 03-15300, manuscript op. at 2 n.1 (11th Cir. April 21, 2005) (concluding that any error
in the guideline calculations was harmless because the district court correctly imposed the
statutory mandatory minimum sentence).
                                               29
      Furthermore, in adopting the PSI’s facts and calculations, the court, at least

implicitly, considered the PSI’s description of the offense conduct and

McKinney’s history and characteristics. In imposing a sentence below

McKinney’s guideline range, the court explicitly stated that, although it had

considered McKinney’s guideline range, it had concluded that his mandatory

minimum sentence was appropriate because he had attempted to cooperate, his

offenses involved “a fairly limited drug offense,” and his codefendant’s guideline

range was significantly less primarily because his codefendant had plead guilty

several days earlier than McKinney. Thus, the court properly considered the

nature and circumstances of the offense, McKinney’s character, and the need to

avoid unwarranted sentencing disparities between the codefendants. See 18

U.S.C. § 3553(a)(1)-(3), (6).

      Accordingly, we conclude that the district court did not commit reversible

error in denying McKinney’s motion to withdraw his guilty plea to his § 924(c)

offense, imposing a mandatory minimum ten-year consecutive sentence based on

his conviction for this offense, or in sentencing him in light of Blakely and

Booker. We, therefore, affirm.

      AFFIRMED.




                                         30
