                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                    FILED
                           ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                October 5, 2005
                                 No. 05-10240
                                                               THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

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

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

EDWARD MELVIN,

                                                              Defendant-Appellant.

                           ________________________

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

                                 (October 5, 2005)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:

      Edward Melvin appeals his sentence of 100 months imprisonment, imposed

following his guilty plea as to knowingly and intentionally distributing and
possessing with intent to distribute a controlled substance, “crack” cocaine, within

1,000 feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1) and 860.

Because Melvin preserved his Booker 1 challenge, the government must show that

any constitutional error in the district judge’s imposition of sentence was harmless

beyond a reasonable doubt. Here, the record does not establish harmless error,

and, therefore, we VACATE and REMAND for resentencing.

                                     I. BACKGROUND

      Melvin was charged by indictment with three counts of knowingly and

intentionally distributing and possessing with intent to distribute an unspecified

quantity of a controlled substance, “crack cocaine,” within 1,000 feet of a

playground, in violation of 21 U.S.C. §§ 841(a)(1) and 860. He agreed to plead

guilty without a written plea agreement, and without admitting to the drug

quantities totaling 5.63 grams outlined in the government’s factual proffer. R3 at

8-10. The court accepted the guilty plea in light of the government’s consent to

accept the plea without an admission as to quantity. Id. at 10-11.

      The probation officer computed a base offense level of 28, using the drug

amounts alleged by the government, but not admitted by Melvin. There were no

other enhancements. Melvin was awarded a three-level reduction for timely



      1
          United States v. Booker, 534 U.S. ___, 125 S. Ct. 738 (2005).

                                                 2
acceptance of responsibility. This yielded a total offense level of 25. The

probation officer calculated Melvin’s criminal history score at ten points, resulting

in a criminal history category of V. Accordingly, Melvin’s guidelines range was

100 to 125 months imprisonment.

      Melvin challenged the computation of his offense level on the basis of

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). R2-28 at 2-3, 10.

He argued that Blakely should be applied to the federal sentencing guidelines and

that, if it were so applied, his base offense level would be 12, rather than 28,

because he had not admitted to the quantity of drugs used in calculating it. Id. at 2.

Melvin also objected to the computation of his criminal history score, contending

that giving multiple points for a single offense constitutes judicial fact-finding,

precluded by Blakely and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000). Id. at 11.

      Melvin argued, alternatively, that he should receive a downward departure

pursuant to U.S.S.G. §4A1.3 (2004) because his criminal history was over-

represented by the assigned score, and pursuant to U.S.S.G. §5K2.11, because his

conduct did not threaten the harm sought to be prevented by the drug statute he had

violated. Id. at 12-16. More specifically, he argued that his distribution of drugs

within 1,000 feet of a playground was purely inadvertent, because his family’s



                                           3
residence (the location from which he distributed the “crack” cocaine) was located

near a park with a playground. Id. at 14-16.2

       At sentencing, Melvin renewed his Blakely objections and reiterated that

“[w]hen the quantities were recited [at the change-of-plea hearing, he had] made no

agreements, no admissions, [and] no concessions” regarding any amount of

“crack” cocaine. R4 at 7. The court overruled Melvin’s objections to the base

offense level and the criminal history score on the basis of United States v. Reese,

382 F.3d 1308 (11th Cir. 2004),3 and denied his requests for downward departure.

R4 at 10, 22-23. With regard to the §5K2.11 request, the court concluded that

Melvin’s offense conduct, selling “crack” cocaine “within [ ] a stone’s throw” of a

park frequented by children, fell squarely within the harm contemplated by 21

U.S.C. § 860. R4 at 12, 14.

       Melvin also raised a sixth objection, contending that the guidelines as a

whole were unconstitutional. Id. at 7. The court overruled this objection, again

citing Reese, and sentenced Melvin to 100 months imprisonment as to each count,



       2
        Melvin also objected to the omission of a three-level downward adjustment for acceptance
of responsibility. R2-28 at 12. The probation officer corrected the calculation to account for this
oversight before the sentencing hearing.
       3
         In Reese, we held that Blakely did not apply to the federal sentencing guidelines. Reese,
382 F.3d at 1312. Following the Supreme Court’s further consideration in light of United States v.
Booker, 534 U.S.__ , 125 S. Ct. 738 (2005), we vacated Reese’s sentence and remanded. United
States v. Reese, 397 F.3d 1337 (11th Cir. 2005).

                                                4
to be served concurrently, and 6 years supervised release as to each count, also to

run concurrently. Id. at 10, 24-25. Melvin now appeals the calculation of his base

offense level in light of the unadmitted drug quantities.4

                                      II. DISCUSSION

       In United States v. Booker, 534 U.S. ___, 125 S. Ct. 738 (2005),5 the

Supreme Court held that Blakely applied to the federal sentencing guidelines and

that the Sixth Amendment required that any fact that increased a defendant’s

sentence beyond the maximum sentence authorized by the facts established by a

plea or a jury verdict must be admitted by the defendant or proven to a jury beyond

a reasonable doubt. Id. at      , 125 S. Ct. 755-56. We have 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. See United States v. Shelton, 400

F.3d 1325, 1330-31 (11th Cir. 2005).

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

review the sentence de novo, but will reverse only if the error was harmful. See

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

is on the government to show that the error was harmless. To show that a


       4
       The other issues raised before the court, but not argued in the briefs on appeal are deemed
abandoned. See Cross v. United States, 893 F.2d 1287, 1289 n.4 (11th Cir. 1990).
       5
           We now review Blakley arguments under Booker.

                                                5
constitutional error was harmless, the government must demonstrate “beyond a

reasonable doubt, that the error did not contribute to the defendant’s ultimate

sentence.”   United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (per

curiam) (citation omitted).   To show non-constitutional 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. See id. at 1291-92. Here, the government concedes that the record

establishes both constitutional and non-constitutional error. We agree.

      A sentencing court’s determination of drug quantities, if it serves to increase

an individual’s base offense level under the guidelines, is constitutional error. See

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, __ U.S.

__, 125 S. Ct. 2935 (2005). Here, in calculating the base offense level, the court

relied on drug quantities that were neither included in the indictment nor admitted

by Melvin. The court’s determination was based on the government’s statements

in the change-of-plea colloquy and on the statement of offense contained in the

presentence investigation report. R4 at 6. Melvin never agreed to this or any other

quantity, and specifically stated that he planned to contest the quantities asserted if

it ever became necessary. R3 at 11; R4 at 6-7. Reliance on these quantities in

calculating the sentence thus amounted to a constitutional error. Further, the



                                            6
court’s treatment of the guidelines as mandatory constitutes statutory error.

      The government also concedes that the error here is not harmless. We agree.

Where it is unclear whether the court would have imposed the same sentence but

for the mandatory guidelines, the government cannot show that the error was

harmless beyond a reasonable doubt. See United States v. Davis, 407 F.3d 1269,

1271-72 (11th Cir. 2005) (per curiam).

      Here, the court did not indicate that it would have imposed the same

sentence if the guidelines had been advisory. During sentencing, it discussed

options for a downward departure from the guidelines range, but was unable to

find a basis for such departure under U.S.S.G. §§4A1.3 and 5K2.11. R4 at 14, 18,

23. Departures under these sections must be based on factors not necessarily

encompassing those considered under 18 U.S.C. §3553(a). The court also stated

that it finds “lengthy incarcerated sentences for young men extremely difficult to

give,” and gave Melvin the lowest sentence permitted in his range. R4 at 23-24.

Finally, the court commented that an appeal after Booker might bring a different

result. Id. at 23. We cannot say how the court would have sentenced Melvin had it

not believed the guidelines were mandatory. Consequently, as it has conceded, the

government cannot show the constitutional error was harmless beyond a reasonable




                                          7
doubt.6



                                     III. CONCLUSION

       Therefore, because the government cannot meet its burden to show harmless

error, we VACATE and REMAND for resentencing under an advisory guidelines

scheme.




       6
          The same facts would result in a remand under the less stringent test for statutory harmless
error. The court specifically told Melvin that its decision was predicated on her being bound by a
mandatory sentencing scheme. R4 at 23. Where the district court has indicated a desire to impose
a lesser sentence than that mandated by federal guidelines, we have remanded the case. See Shelton,
400 F.3d at 1332-33, 1334. The facts here suggest that the court was concerned with the length of
Melvin’s sentence. Thus, as the government has conceded, it cannot show the error had only a slight
effect on the sentence imposed. See Mathenia, 409 F.3d at 1292.

                                                  8
