                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 06-10675                   JULY 25, 2006
                          Non-Argument Calendar            THOMAS K. KAHN
                                                                CLERK
                        ________________________

                    D. C. Docket No. 04-60192-CR-MGC

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellant,

                                   versus

EDWARD MELVIN,

                                                        Defendant-Appellee.


                        ________________________

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

                              (July 25, 2006)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     The government appeals Edward Melvin’s 33 month sentence for
distribution and possession with intent to distribute cocaine base within 1,000 feet

of a school. Although the government presented uncontested evidence that the

quantity of drugs in question weighed more than five grams, the district court ruled

that, because the government failed to list an amount in the indictment and because

the defendant did not admit to any amount of drugs, it was bound to sentence

Melvin at the lowest base offense level for cocaine base. Because the district court

should have considered the government’s evidence, we VACATE and REMAND

for resentencing.



                                I. BACKGROUND

      A federal grand jury returned a three-count indictment against Melvin,

charging him with knowingly and intentionally distributing and possessing with

intent to distribute a controlled substance, cocaine base, commonly known as

“crack cocaine,” within 1,000 feet of a playground, in violation of 21 U.S.C.

§§ 841(a)(1), 860. Although the indictment stated that the controlled substance

contained a “detectable amount of cocaine base,” it did not give a specific quantity.

R1-3 at 1. Melvin pled guilty to all three counts.

      During the plea colloquy, the government proffered evidence indicating that

Melvin had sold crack cocaine to a confidential source of the Drug Enforcement



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Administration on three different occasions. The government further stated the

weight of crack cocaine the confidential source obtained at each sale. When asked

whether he agreed with the facts presented by the government, Melvin responded

that he was unwilling to make any admissions with regard to the drug quantity.

The government agreed to accept the plea without an admission as to quantity.

Melvin then stated that he reserved the right to request a re-weigh in order to

maintain his option of challenging the quantity of crack cocaine stated by the

government.

      Prior to sentencing, a probation officer prepared a presentence investigation

report, setting Melvin’s base level offense at 28 based, pursuant to U.S.S.G.

§ 2D1.2 (2004), on the probation officer’s determination that Melvin had sold

more than 5 grams, but less than 20 grams, of crack cocaine within 1,000 feet of a

protected area. The PSI also recommended a three-level reduction for acceptance

of responsibility, pursuant to U.S.S.G. § 3E1.1. With a total offense level of 25,

and a criminal history category of V, Melvin’s resulting guideline range was 100 to

125 months imprisonment.

      Melvin was initially sentenced to 100 months imprisonment, but an appeal

was taken, and we vacated that initial sentence and remanded for resentencing in

light of Booker. At resentencing, Melvin argued for a base offense level of 12, the



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lowest offense level for an offense involving cocaine base, because the drug

quantity set forth by the government was not admitted by Melvin nor proven to a

jury. The following exchange then took place between the district court and the

government:

      Court:             [W]e have no admission. It’s not charged in the
                         indictment. I’m bound by the indictment, aren’t I?
      Government:        Well, if I understand the Court to say “that I am
                         bound by the indictment” to say that the detectable
                         amount of drugs is less than 250 milligrams, I
                         disagree with that.
      Court:             How would I make that finding given Booker and
                         Blak[el]y and the defendant having failed to admit
                         that amount?
      Government:        I think the Court, as it could find by any
                         enhancement post Booker by a preponderance of
                         the evidence in determining the advisory guideline
                         range the weight of the drugs here. . . . The weight
                         of the drugs or any other factor, the Court looks to
                         the facts of the case and determines by a
                         preponderance of the evidence what it can
                         conclude. I don’t think there has ever really been
                         any dispute in this case that the weight of the drugs
                         is 5.63[grams].
      Court:             I think that there has, because the defendant even
                         refused to admit that amount at his plea colloquy.
      Government:        . . . I don’t think there is any dispute that the lab
                         reports would reflect the weight of the drugs sold
                         by the defendant, which he admitted to selling 5.63
                         grams. I understand he took the legal position of
                         not admitting the weight of the drugs for purposes
                         of error under Booker, but I am not here
                         suggesting to the Court that they have evidence of
                         alternative reweighing under those lines.



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R3 at 3–4. Melvin argued that even if the government submitted a lab report, the

report would be insufficient to establish the drug amount because he would object

to the amount. Melvin then reminded the district court that the court had indicated

at the initial sentencing that Melvin’s guideline range was too high. The court

responded that “I thought I had no ability to depart from what I thought that the

language was at that time because we all thought of the mandatory nature of the

guidelines.” Id. at 6. The district court then stated:

       I believe last summer, at least for me, we were all trying to navigate
       the kind of rough waters of Booker, Blak[el]y, and Reese. I believe,
       and there are certain of these resentences that I have done and the
       sentences remain[] the same. But in this case I believe there are some
       adjustments that need to be made given the way that the indictment in
       this case was written.

Id. at 7.

Before sentencing Melvin, the district court stated:

       I do want to say something. I know I spoke in terms of the guidelines
       at that time, because I did believe that, given this quantity, it did
       adversely affect this defendant as to the amount of time that he was
       going to be incarcerated. I do want to say that I believe that this
       defendant deserves an incarcerated sentence. With a criminal history
       of five, he hasn’t learned his lesson.
               I am not discounting totally the efforts that he has made while
       he has been incarcerated this time. Maybe this one will stick. At a
       criminal history of five, your client is no babe in the woods, Mr.
       Lautenbach.

Id. at 8. The court then sentenced Melvin to 33 months imprisonment, and the



                                           5
government appealed.

      On appeal, the government argues that the district court erred by ruling that

the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S. Ct.

738 (2005), precluded the court from making factual determinations in computing

the advisory U.S. Sentencing Guideline range when the indictment did not include

those facts and Melvin did not admit to them. The government also contends that

the district court’s misinterpretation of Booker caused it to misconstrue the scope

of our mandate to resentence Melvin under an advisory guideline scheme because

the district court modified the advisory guideline range where it should have, under

our post-Booker precedent, calculated the advisory range in exactly the same

manner that it would have calculated the range under a mandatory scheme. As a

result, the government argues, the district court failed to properly consult the

guidelines.

      The government may appeal

      an otherwise final sentence if the sentence -- (1) was imposed in
      violation of law; (2) was imposed as a result of an incorrect
      application of the sentencing guidelines; (3) is less than the sentence
      specified in the applicable guideline range . . . or (4) was imposed for
      an offense for which there is no sentencing guideline and is plainly
      unreasonable.

18 U.S.C. § 3742(b). We have continued to consider government appeals of a

defendant’s sentence following Booker. See, e.g., United States v. Williams, 435

                                           6
F.3d 1350, 1351 (11th Cir. 2006) (per curiam).



                                     II. DISCUSSION

       We review the district court’s application of the guidelines de novo. United

States v. Patti, 337 F.3d 1317, 1323 (11th Cir. 2003). “A sentencing court under

Booker still must consider the Guidelines, and, such consideration necessarily

requires the sentencing court to calculate the Guidelines sentencing range in the

same manner as before Booker.” United States v. Crawford, 407 F.3d 1174,

1178–79 (11th Cir. 2005) (citation omitted). “Extra-verdict enhancements are to

be determined and used in the post-Booker world.” United States v. Rodriguez,

398 F.3d 1291, 1301 (11th Cir.), cert. denied, ___ U.S. ___, 125 S. Ct. 2935

(2005).1

       Because the district court mistakenly concluded that, after Booker, it could

not calculate the guideline range using a drug quantity neither included in the

indictment nor admitted to by Melvin, the district court incorrectly applied the



       1
          Although Melvin has argued that we may not hear an appeal when the result might be
an increased penalty on resentencing, he has provided no authority supporting his contention that
Double Jeopardy Clause precludes our consideration of a government appeal of a defendant’s
sentence in a post-Booker world. Further, we have continued to consider such appeals following
Booker. Here, the government argues that the district court incorrectly computed the guideline
range, an argument supported by case law, see Rodriguez, 398 F.3d at 1301, and specifically
allowed by 18 U.S.C. § 3742(b)(2). Thus, Melvin’s argument that we are barred from
considering the government’s appeal is without merit.

                                                7
guidelines. The district court’s obligation was to calculate correctly the Guidelines

range, which in turn required it to determine the drug quantity under a

preponderance of the evidence standard. See United States v. Chau, 426 F.3d

1318, 1324 (11th Cir. 2005) (per curiam) (holding that correct calculation requires

the district court to consider facts that go beyond a defendant’s admissions). Thus,

we vacate and remand for resentencing consistent with this opinion.



                               III. CONCLUSION

      The government has appealed Edward Melvin’s 33 month sentence for

distribution and possession with intent to distribute cocaine base within 1,000 feet

of a school. The district court should have considered the government’s evidence

that the quantity of drugs in question weighed more than five grams. Because the

district court erred, we VACATE and REMAND for resentencing.




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