                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                 JUNE 2, 2005
                                 No. 04-14683
                                                               THOMAS K. KAHN
                             Non-Argument Calendar
                                                                   CLERK
                           ________________________

                       D.C. Docket No. 03-20764-CR-MGC

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                       versus

DWELLEY CAULEY,
a.k.a. Bart,

                                                   Defendant-Appellant.
                         __________________________

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

                                  (June 2, 2005)

Before ANDERSON, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:

      Dwelley Cauley appeals his 210-month sentence, imposed after he pled guilty

to conspiracy to possess with intent to distribute five kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii). On appeal, Cauley argues that,

in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403

(2004), which was extended to the federal Sentencing Guidelines in United States v.

Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the district court

violated his Sixth Amendment rights at sentencing when it held him accountable for

614 kilograms of cocaine. He also argues that the district court violated the remedial

holding of Booker by applying the Guidelines as mandatory, and that the error’s

harmfulness is evidenced by the district court’s imposition of “the mandatory-

minimum guideline sentence.” Cauley raised these objections in the district court and

therefore is entitled to de novo review. United States v. Paz, --- F.3d ---, 2005 WL

757876, *2 (11th Cir. Apr. 5, 2005). We will reverse a Booker error only if the error

was harmful, meaning that the error affected substantial rights. Id.

      After thorough review of the record, as well as careful consideration of the

parties’ briefs, we find no constitutional sentencing error. However, we find non-

constitutional Booker error and, accordingly, vacate and remand Cauley’s sentence

for resentencing, pursuant to the discretionary Sentencing Guidelines scheme now

required by Booker.

      The relevant facts are these. Cauley pled guilty, without a written plea

agreement, to conspiracy to possess with intent to distribute five kilograms or more

                                          2
of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii). At the plea

colloquy, the district court advised Cauley that, among other things, he had a right to

a jury trial and to have the government prove its case beyond a reasonable doubt.

Cauley indicated that he understood that by pleading guilty, he was giving up these

rights. The district court then instructed Cauley to pay attention to the government’s

recitation of the facts it would have proven had Cauley gone to trial because the court

would later ask him if he agreed with the facts. The government then indicated that

it would have proven, among other things, that Cauley “possessed with intent to

distribute . . . a total of 614 kilograms of cocaine during the course of the conspiracy.”

The court asked Cauley if he agreed to the facts recited by the government, to which

Cauley responded affirmatively. The court thereafter accepted Cauley’s guilty plea

and he proceeded to sentencing.

      According to the presentence investigation report (PSI), Cauley, codefendant

David Marks, unindicted co-conspirator Eddie Diaz, and three other named

unindicted co-conspirators, as well as other unknown, unindicted co-conspirators,

engaged in the conspiracy from January 1995 until January 1999. During 1995, Diaz,

a cocaine supplier, distributed at least 100 kilograms of cocaine to Cauley and Marks,

and from 1995 until 1997 Diaz distributed cocaine to Cauley and Marks on a regular

basis, making approximately 20 deliveries of 10-20 kilograms of cocaine each.

                                            3
During a search of one of Diaz’s “stash houses,” investigators found a drug ledger

that showed that Cauley received 155 kilograms of cocaine between July 13 and

October 30, 1997, and 90 kilograms of cocaine between April 7 and April 14, 1998.

During a search of a second stash house, investigators found another ledger indicating

that Cauley and Marks received 69 kilograms of cocaine on or about October 27,

1998. In total, Cauley and Marks were responsible for 614 kilograms of cocaine.

      The probation officer assigned Cauley a base offense level of 38 based on an

offense involving 150 kilograms or more of cocaine. Cauley’s offense level was

decreased three levels for acceptance of responsibility. With a total offense level of

35 and criminal history category of III, the applicable guideline range was 210 to 262

months.

      Prior to sentencing, Cauley objected, based on Blakely, to the use of 614

kilograms of cocaine to determine his base offense level. Cauley asserted that during

his plea colloquy, the district court had failed to inform him that drug quantity was

an element of his offense and that he had the right to have a jury determine the drug

quantity. He argued that the district court could not “sentence him for any amount

other [than] the ‘5 kilograms or more’ of cocaine” charged in the indictment. Cauley

also argued that his Sixth Amendment right to a jury trial would be violated because

there was no knowing and intelligent waiver of the right since the court did not advise

                                          4
him of his right to a jury trial or to a jury finding beyond a reasonable doubt on the

amount of cocaine during his plea colloquy. He contended that his acquiescence to

the amount of cocaine at the plea colloquy was not the same as a stipulation because,

the term “stipulate” required a written plea agreement, which was not present in this

case.

        At the sentencing hearing, the district court denied Cauley’s objection, finding

that Blakely was not implicated since Cauley had agreed to the amount of cocaine

proffered by the government during the plea colloquy. In considering Cauley’s

motion to allow his sentence to run concurrently with a sentence imposed in a

different case, the district court accepted the government’s suggestion to allow the

sentence in the instant case to run partially concurrent with the other sentence. The

court stated that the government’s suggestion was “eminently reasonable under the

circumstances.”

        Adopting the PSI, the court sentenced Cauley to 210 months’ imprisonment to

run partially concurrent with his other sentence, such that Cauley would serve an

additional five years of imprisonment beyond the sentence imposed in the other case.

The court indicated that the 210-month sentence was “sufficient under all of the

circumstances to deter future criminal conduct.” This appeal followed.




                                            5
      In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435

(2000), the Supreme Court held 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. at 490,

120 S. Ct. at 2362-63. The Court subsequently applied the Apprendi rule in the

context of Washington State’s sentencing guideline scheme, clarifying 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

(citations omitted) (emphasis in original).

      Most recently, in Booker, the Supreme Court found “no distinction of

constitutional significance between the Federal Sentencing Guidelines and the

Washington procedures at issue” in Blakely. See 125 S. Ct. at 749. The Court held

that the mandatory nature of the Guidelines rendered them incompatible with the

Sixth Amendment’s guarantee to the right to a jury trial. Id. at 749-52. “This

constitutional holding ‘means that it is no longer possible to maintain the judicial

factfinding that Congress thought would underpin the mandatory Guidelines system

                                           6
that it sought to create.’” United States v. Garcia, --- F.3d ---, 2005 WL 845532, at

*12 (11th Cir. Apr. 13, 2005) (quoting Booker, 125 S. Ct. at 757).

       Here, Cauley was held responsible only for the quantity of cocaine the

government proffered, without objection, as a basis for Cauley’s guilty plea at the

plea colloquy. Again, the district court advised Cauley that he should “pay attention”

to the factual proffer and that he would later be asked whether he agreed to the facts

as stated by the government. The government stated that it would have proven that

Cauley “possessed with intent to distribute . . . a total of 614 kilograms of cocaine

during the course of the conspiracy.” Cauley agreed to these facts at the plea

colloquy. On this record, there is no impermissible judicial factfinding in violation

of the Sixth Amendment in the district court’s attribution of 614 kilograms of cocaine

to Cauley for purposes of calculating his offense level.1

       Although there was no Sixth Amendment Booker violation, Cauley was

sentenced under the pre-Booker mandatory Sentencing Guidelines. The district court

followed the correct sentencing procedure when it sentenced Cauley, but “the

Supreme Court has now excised the mandatory nature of the Guidelines in Booker.”



       1
           This fact distinguishes the case from our recent decision in United States v. Paz, __
F.3d__, 2005 WL 757876 (11th Cir. Apr. 5, 2005), which involved a six-level enhancement to the
defendant’s offense level based on judicial factfinding as to amount of loss. Thus, Paz involved both
constitutional and non-constitutional Booker error.

                                                 7
United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (reviewing

Booker claim for plain error).      In Shelton, we concluded that “it was [non-

constitutional] Booker error for the district court to sentence Shelton under a

mandatory Guidelines scheme, even in the absence of a Sixth Amendment

enhancement violation.” Id. at 1330-31 (citing United States v. Rodriguez, 398 F.3d

1291, 1301 (11th Cir. 2005) (“the [non-constitutional Booker] error is the mandatory

nature of the guidelines once the guidelines range has been determined”)). “As a

result of Booker’s remedial holding, Booker error exists when the district court

misapplies the Guidelines by considering them as binding as opposed to advisory.”

Shelton, 400 F.3d at 1331.

      After adopting the PSI and its recommended Guidelines range, the district court

treated the resulting range as mandatory. Had the district court treated the Sentencing

Guidelines as advisory, it might have found Cauley responsible for the same amount

of cocaine but nevertheless sentenced him below the Guidelines range for this

quantity based upon other factors, such as the various grounds upon which Cauley

presented testimony from four character witnesses at the sentencing hearing. Because

the district court treated the Sentencing Guidelines as mandatory, and provided no

indication that it would have imposed a different sentence under a discretionary




                                          8
scheme, it is impossible to tell what sentence it would have imposed under an

advisory reading of the Sentencing Guidelines.

      Based on the excision of the mandatory provisions of the Guidelines, in cases

involving preserved Booker error, we have required the Government to show that the

mandatory, as opposed to the advisory, application of the Guidelines did not

contribute to the defendant’s sentence. See Paz, 2005 WL 757876 at *2 (holding that

the Government could not meet its burden under harmless error analysis because the

record indicated that had the Guidelines been advisory, his sentence would have been

shorter). Thus, the government bears the burden to show that the non-constitutional

Booker error did not affect substantial rights. See Fed. R. Crim. P. 52(a).

      A non-constitutional error is harmless “if, viewing the proceedings in their

entirety, a court determines that the error did not affect the [outcome], or had but very

slight effect.” United States v. Hornaday, 392 F.3d 1306, 1315 (11th Cir. 2004)

(internal quotation marks and citations omitted). “If one can say ‘with fair assurance

. . . that the judgment was not substantially swayed by the error,’ the judgment is due

to be affirmed even though there was error.” Id. (quoting Kotteakos v. United States,

328 U.S. 750, 764 66 S. Ct. 1239, 1248, 90 L. Ed. 1557 (1946)); see also United

States v. Frazier, 387 F.3d 1244, 1266 n.20 (11th Cir. 2004) (en banc) (“Errors do

affect a substantial right of a party if they have a ‘substantial influence’ on the

                                           9
outcome of a case or leave ‘grave doubt’ as to whether they affected the outcome of

a case.” (quoting Kotteakos, 328 U.S. at 764-65, 66 S. Ct. at 1248)).

       Based on our careful reading of the record, and particularly the transcript of the

sentencing hearing, we can find no indication of whether or not the district court

would have sentenced Cauley similarly under an advisory scheme. Cf. Rodriguez,

398 F.3d 1at 1301 (applying plain error analysis to an non-preserved Booker error,

and stating that because the defendant bore the burden of persuasion and no one could

know what would have happened in an advisory system, the defendant could not meet

his burden).        Accordingly, the government has not met its burden to show

harmlessness, or no effect on substantial rights, under Rule 52(a). Accordingly, we

vacate Cauley’s sentence and remand for resentencing consistent with Booker.2

       VACATED AND REMANDED.




       2
          We note that in this case, the district court correctly determined the Guidelines range for
Cauley’s conviction as 210-262 months’ imprisonment. On remand, pursuant to Booker, the district
court is required to sentence Cauley under an advisory Guidelines scheme, and, in so doing, must
consider the Guidelines range of 210-262 months’ imprisonment, and “other statutory concerns as
well, see [18 U.S.C.] § 3553(a) (Supp. 2004).” Booker, 125 S. Ct. at 757.

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