                                                                      [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                      FOR THE ELEVENTH CIRCUIT

                          -------------------------------------------           FILED
                                       No. 04-16332                   U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                 Non-Argument Calendar                    September 16, 2005
                         -------------------------------------------- THOMAS K. KAHN
                                                                              CLERK
                       D.C. Docket No. 04-00139-CR-WTM

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                           versus

DILLARD ROSS,

                                                          Defendant-Appellant.


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                    Appeal from the United States District Court
                         for the Southern District of Georgia
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                                  (September 16, 2005)

Before EDMONDSON, Chief Judge, ANDERSON and CARNES, Circuit Judges.


PER CURIAM:


      Dillard Ross appeals his 108-month sentence, pursuant to his guilty plea, for

distribution of 5 or more grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Ross argues that the district court violated Blakely v. Washington,

124 S.Ct. 2531 (2004), when it sentenced him based on a drug quantity that he did

not admit and that was not proved to a jury beyond a reasonable doubt. The

government concedes that error exists under United States v. Booker, 125 S.Ct.

738 (2005). We agree; we vacate Ross’s sentence and remand for resentencing

consistent with Booker.

       Ross was indicted for two counts of distribution of 5 or more grams of crack

cocaine based on two transactions: the first, involving 46.4 grams, occurred on 7

January 2004 (Count One) and the second, involving 27.6 grams, occurred on 16

January 2004 (Count Two).1 Ross agreed to plead guilty to Count One. In the

plea agreement, the government agreed to dismiss Count Two, and Ross admitted

to distributing 46.4 grams of cocaine base on 7 January 2004. Ross made no

admission about Count Two.

       The presentence investigation report (PSI) attributed to Ross a total drug

quantity of 74 grams of crack cocaine: 46.4 grams for the first transaction and 27.6

grams for the second transaction. The PSI assigned a base offense level of 32,

under U.S.S.G. § 2D1.1(c)(4), and a 3-level reduction for acceptance of



   1
    Ross also was indicted for possession of a firearm by a convicted felon, but that count was
dismissed on the government’s motion and is not relevant to this appeal.

                                              2
responsibility, § 3E1.1(a), (b). Combined with a criminal history category of III,

the PSI assigned Ross a guideline sentencing range of 108 to 135 months’

imprisonment.

      Based on Blakely and Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), Ross

objected to the PSI’s inclusion, in its drug weight calculation, of the sale of the

27.6 grams of crack cocaine listed in Count Two. He argued that he did not plead

guilty to Count Two, that he did not admit to this conduct, and that a jury did not

find him guilty of that charge. Ross asserted that he could be held accountable for

the 46.4 grams of crack cocaine in Count One. The district court overruled Ross’s

Blakely objection, but expressed hope “that sometime very soon the Supreme

Court of the United States will clarify the issue of the guidelines and their

constitutionality, but until such time as they change the law, it is the opinion of

this Court that the guidelines are still binding.” The district court then adopted the

PSI’s calculations and sentenced Ross to 108 months’ imprisonment.

      In Booker, the Supreme Court held that Blakely applied to the Sentencing

Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.),

petition for cert. denied, No. 04-1148 (U.S. June 20, 2005). Under Booker, two

types of sentencing errors exist: “one is constitutional and the other is statutory.”

United States v. Dacus, 408 F.3d 686, 688 (11th Cir. 2005). “[T]he Sixth

                                           3
Amendment right to trial by jury is violated where under a mandatory guidelines

system a sentence is increased because of an enhancement based on facts found by

the judge that were neither admitted by the defendant nor found by the jury.”

Rodriguez, 398 F.3d at 1298. The statutory error occurs when the district court

sentences a defendant “under a mandatory Guidelines scheme, even in the absence

of a Sixth Amendment enhancement violation.” United States v. Shelton, 400

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

      Ross properly preserved his Blakely/Booker constitutional objection in the

district court. See United States v. Dowling, 403 F.3d 1242, 1245 (11th Cir.

2005). We review this issue de novo; but we will not reverse the district court if

the government shows that the error was harmless beyond a reasonable doubt. See

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

      Ross’s sentence was enhanced, under a mandatory guidelines system, based

on facts found by the judge and not admitted by Ross: Booker indicates that

Ross’s Sixth Amendment right to trial by jury was violated. See United States v.

Davis, 407 F.3d 1269, 1270 (11th Cir. 2005). And the government concedes error:

the government thus does not attempt to show “that the mandatory, as opposed to

the advisory, application of the guidelines did not contribute to [Ross]’s sentence.”

Id. at 1271. The district court expressly treated the guidelines as mandatory: it

                                          4
made no statement indicating that it would have given the same sentence

regardless of whether the guidelines were advisory or mandatory. See id. (no

harmless error beyond a reasonable doubt where “[w]e simply do not know what

the sentencing court would have done had it understood the guidelines to be

advisory rather than mandatory, and had properly considered the factors in 18

U.S.C. § 3553(a)”). Ross must be resentenced under the advisory guidelines

system: on remand, the district court, “while not bound to apply the Guidelines,

must consult those guidelines and take them into account when sentencing.” Paz,

405 F.3d at 949 (quoting Booker, 125 S.Ct. at 767).

      VACATED and REMANDED.




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