                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                          November 17, 2005
                             No. 04-10659
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                  D. C. Docket No. 03-14033-CR-DMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

KYLE EBRITE WILLIAMS,

                                                         Defendant-Appellant.


                       ________________________

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

                           (November 17, 2005)

              ON REMAND FROM THE SUPREME COURT
                     OF THE UNITED STATES

Before ANDERSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
      Kyle Ebrite Williams was convicted of conspiracy to manufacture

methamphetamine, in violation of 21 U.S.C. § 846. He appealed, challenging

(1) the sufficiency of the evidence; (2) the denial of his motion for a mistrial;

(3) the determination of drug quantity based on theoretical yield; and (4) the

imposition of an enhancement in his sentence for possession of a firearm. He

based this last argument on the Supreme Court’s decision in Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 403 (2004).

      On November 29, 2004, we affirmed Williams’s conviction and sentence.

The Supreme Court granted certiorari, vacated our opinion, and remanded the case

to us for reconsideration in light of United States v. Booker, 543 U.S. –, 125 S.Ct.

738, 160 L.Ed. 621 (2005). Upon reconsideration, we affirm the conviction for the

reasons given in our prior opinion dated November 29, 2004. For the reasons that

follow, we affirm in part and vacate and remand in part Williams’s sentence.

      In Booker,1 the Supreme Court held that Blakely applied to the federal

sentencing guidelines and that “the Sixth Amendment right to trial by jury is

violated where, under a mandatory guideline system, a sentence is increased based

on facts found by the judge that were neither admitted by the defendant nor found

by the jury.” United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005)



      1
          We now review Blakely arguments under Booker.

                                            2
(citations omitted), cert. denied, 125 S. Ct. 2935 (2005). The constitutional error is

not that there were extra-verdict enhancements but “that there were extra-verdict

enhancements used in an mandatory guidelines system.” Id. at 1300. This court

has explained that a Booker error also results from the district court’s use of a

mandatory guidelines scheme, even in the absence of any constitutional error.

United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

       Because Williams preserved his Booker challenge in the district court, we

review the sentence de novo, but will reverse only if the error was not harmless.

United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). The burden is on the

government to show that the error was harmless and there are two standards for the

harmless error test. To establish that a constitutional error was not harmless, the

government must demonstrate that the error did not affect the defendant’s

substantial rights.2 To show statutory harmless error, the government is held to a

less demanding standard, but must show that, viewing the proceedings in their

entirety, the error had no effect or a very slight effect on the sentence.3 United



       2
         In other words, “where it is clear ‘beyond a reasonable doubt that the error complained of
did not contribute to the [sentence] obtained.’” Mathenia, 409 F.3d at 1291-92.
       3
            “The non-constitutional harmless error standard is not easy for the government to meet.
It is as difficult for the government to meet that standard as it is for a defendant to meet the third-
prong prejudice standard for plain error review.” Mathenia, 409 F.3d at 1292 (citing Paz, 405 F.3d
at 948-49; United States v. Garcia, 405 F.3d 1260, 1275-76 (11th Cir. 2005)).


                                                  3
States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005).

       Here, the district court imposed an extra-verdict enhancement based on

Williams’s possession of a firearm and calculated the sentence under a mandatory

guideline regime. Thus, Williams’s sentence suffers from both constitutional and

statutory error, and we must reverse unless the government can show that the error

was harmless beyond a reasonable doubt.4

       A review of the record does not establish that the error was harmless.

Williams was sentenced at the low end of the guidelines range. At sentencing,

however, the district court made no statements about the sentence it imposed other

than its determination that it should sentence Williams at the low end of the

guideline range because he faced a greater sentence than his codefendant due to his

criminal history. Without more, this is insufficient for the government to meet its

burden.

       Although there was Booker error, there are still guidelines issues to be

addressed. The district court on remand must still correctly calculate the

guidelines range, and thus we examine whether the district court did so. See

United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (stating that after

Booker, district courts must consult the Guidelines and “[t]his consultation


       4
          If the government can meet this heavy burden, then it also would be able to meet the
statutory harmless error standard.

                                              4
requirement, at a minimum, obliges the district court to calculate correctly the

sentencing range prescribed by the Guidelines”). We conclude that the district

court correctly calculated Williams’ guidelines range as 92 months to 115 months.

      First, the district court properly imposed the firearm enhancement in

calculating that guidelines range. We review a district court’s findings of fact

related to a § 2D1.1(b)(1) firearm enhancement for clear error. United States v.

Hall, 46 F.3d 62, 63 (11th Cir. 1995). The guidelines require a two-level

enhancement of the defendant’s offense level for possession of a firearm. U.S.S.G.

§ 2D1.1(b)(1). “The adjustment should be applied if the weapon was present,

unless it is clearly improbable that the weapon was connected to another offense.”

Id., comment. (n.3).

      In the present case, the firearm was found in the defendant’s apartment.

Although he was not in the same room, he had access to the weapon. The

apartment also contained evidence of a methamphetamine lab, and as we have

observed in prior cases, weapons are often used in connection with drug activities.

See United States v. Terzado-Madruga, 897 F.2d 1099, 1120 (11th Cir. 1990).

Under the guidelines scheme, the district court was justified in applying the firearm

enhancement.

      The district court also did not commit plain error in using the theoretical



                                          5
yield of methamphetamine based on the available evidence to determine the drug

quantity at sentencing.5 As we have held, a “district court may estimate the lab’s

capability by calculating the potential methamphetamine yield based upon seized

precursor chemicals.” United States v. Carroll, 6 F.3d 735 (11th Cir. 1993).

       Accordingly, on remand, the district court is required to sentence Williams

under an advisory Guidelines regime, and shall consider the Guidelines range of 92

to 115 months’ imprisonment and “other statutory concerns as well, see [18 U.S.C.

3553(a) (Supp. 2004).” Booker, 125 S. Ct. at 757.6

       AFFIRMED in part; VACATED AND REMANDED in part.




       5
          Because the defendant did not raise this argument before the trial court, we examine it for
plain error. United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002). The defendant did dispute
the amount of methamphetamine used in the sentencing before the trial court, but in that dispute he
argued in favor of a 60 percent yield, which led to the amount used in sentencing, 4.7 grams. The
defendant now challenges the same process he argued for at trial. Therefore, his argument that this
court should apply a clear error standard, as opposed to plain error, is incorrect.
       6
          We do not mean to imply that on remand the district court must impose a lesser 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.
        We also will not attempt to decide now whether a particular sentence below or above 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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