                                                                   [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                   FOR THE ELEVENTH CIRCUIT
                                                                           FILED
                       -------------------------------------------U.S. COURT OF APPEALS
                                    No. 04-16376                    ELEVENTH CIRCUIT
                                                                       MARCH 20, 2006
                              Non-Argument Calendar
                      -------------------------------------------- THOMAS K. KAHN
                                                                          CLERK

                  D.C. Docket No. 02-00586-CR-BBM-1-2

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                        versus

JOSE JAIMES CAMBRAY,

                                                       Defendant-Appellant.


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                 Appeal from the United States District Court
                     for the Northern District of Georgia
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                                (March 20, 2006)

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


PER CURIAM:
        Defendant-Appellant Jose Jaimes Cambray appeals his 228-month sentence

imposed after he pleaded guilty to one count charging a drug trafficking

conspiracy, three counts charging substantive drug trafficking offenses, and one

count charging possession of a firearm in furtherance of a drug trafficking crime.

Defendant contends the district court committed Booker error, United States v.

Booker, 125 S.Ct. 738 (2005),1 when it calculated his sentence based on drug

quantities greater than the quantities charged in the indictment and to which

Defendant pleaded guilty. Defendant’s constitutional claims were raised timely in

the district court and, as such, are preserved for our review. We vacate and

remand for resentencing.

        Defendant argued at sentencing and argues again on appeal that, consistent

with his constitutional rights, he may be sentenced based on drug quantities no

greater than those charged in the indictment to which he pleaded guilty.

According to Defendant, because the drugs associated with the substantive counts

in the indictment totaled 1,000 grams of methamphetamine and 500 grams of

cocaine, Defendant’s offense level under the guidelines, before credit for



    1
    Booker was decided by the Supreme Court after Defendant was sentenced. At sentencing,
Defendant raised his constitutional claims based on Blakely v. Washington, 124 S.Ct. 2531 (2004).
Because the Booker decision applies to all cases on direct review, we apply Booker to this appeal.
Booker, 125 S.Ct. at 769.

                                                2
acceptance of responsibility, was level 32. Based on this level 32 calculation,

Defendant’s criminal history category of I, and application of a three- point credit

for acceptance of responsibility, Defendant’s guidelines sentence was less than the

10-year mandatory minimum. Defendant contends his sentence can be no greater

than the 10-year mandatory minimum plus the consecutive five-year sentence for

the weapons offense.

      Instead, the district court held Defendant accountable for drug quantities

stated in the PSI and calculated sentence based on almost 16,000 grams of

methamphetamine and almost 1600 grams of cocaine. Over the government’s

objection, the district court gave Defendant a three-point reduction for acceptance

of responsibility. Based on this drug quantity, Defendant’s acceptance of

responsibility, and a criminal history category of I, Defendant’s guideline range

was 168 to 210 months, plus the consecutive five-year sentence for the weapons

offense. Defendant was sentenced to 168 months imprisonment for the drug

offenses, to be followed by 60 months, for a total of 228 months imprisonment.

      We see no merit in Defendant’s constitutional claims. Although Defendant

argues to the contrary, Defendant admitted to the additional drug amounts during

the plea colloquy. Before Defendant’s guilty plea was accepted by the court, the

government stated that the evidence at trial would show that at least 500 grams of

                                          3
cocaine and 39 pounds of methamphetamine was recovered from Defendant’s

apartment,2 and additional methamphetamine (approximately one pound or .454

kg) was seized as a result of the LaBarca transaction. Although the district court

did not question Defendant about the exact drug amounts in the government’s

factual proffer, the Defendant did admit expressly his responsibility for these

drugs. And, even at sentencing, Defendant made no objection to the drug

quantities set out in the PSI on factual grounds; he objected on constitutional

grounds to an enhancement for quantities beyond those charged in the indictment.

When a defendant admits to the facts that enhanced his sentence, no Sixth

Amendment violation under Booker can be shown. Booker, 125 S.Ct. at 756

(reaffirming that facts used to enhance a sentence, other than a prior conviction,

must be proved to a jury beyond a reasonable doubt or admitted by the defendant);

see United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). And, a

defendant’s failure to dispute drug-quantity facts contained in the PSI operates as

an admission of those facts for Booker purposes. See id.

       Although we conclude that the sentencing court committed no constitutional

Booker error, two kinds of sentencing error may be claimed under Booker:


  2
    Laboratory reports show that the actual amount of methamphetamine seized from Defendant’s
apartment was 33.869 pounds, not 39 pounds. The PSI calculated Defendant’s sentence based on
the actual amounts set out in the laboratory reports.

                                             4
constitutional and statutory. See, e.g., United States v.Mathenia, 409 F.3d 1289,

1291 (11th Cir. 2005). “[C]onstitutional error is the use of extra-verdict

enhancements to reach a guidelines result that is binding on the sentencing judge.”

Shelton, 400 F.3d at 1331 (quoting United States v. Rodriguez, 398 F.3d 1291,

1301 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005)). Statutory Booker error

occurs when the district court misapplies the guidelines by considering them as

binding “even in the absence of a Sixth Amendment enhancement violation.”

Shelton, 400 F.3d at 1330-31. Because the district court sentenced Defendant

under a mandatory guidelines system, statutory Booker error has been shown.

       We apply preserved error review to a statutory Booker claim if defendant

preserved a constitutional claim by “citation to Apprendi or to other cases in that

line of cases.” United States v. Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005).3

Statutory Booker error requires reversal “only if [the error] resulted in actual

prejudice because it had substantial and injurious effect or influence in

determining the [result ].” United States v. Gallegos-Aguero, 409 F.3d 1274, 1277

(11th Cir. 2005) (quoting United States. v. Guzman, 167 F.3d 1350, 1353 (11th Cir.

1999)). The government bears the burden to show the absence of effect of the


  3
   We apply preserved error review when considering both constitutional and statutory Booker error
when, as here, the defendant made a constitutional Booker objection in the district court and his
initial appellate brief was filed before our decision in Shelton.

                                                5
statutory error on the defendant’s substantial rights. Mathenia, 409 F.3d at 1292.

A sentence is due to be affirmed if it can be said “‘with fair assurance ... that the

[sentence] was not substantially swayed by the error.’” Id. (quoting United States

v. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir. 2004).

      From our review of the record we can not say with fair assurance that

Defendant’s sentence was not substantially impacted on by the statutory Booker

error. What sentence the district court would have imposed had it considered the

guidelines advisory and had properly considered the factors in 18 U.S.C. § 3553(a)

is unknown and unknowable. The government failed to carry its burden of

showing that the error was harmless. Accordingly, we vacate Defendant’s

sentence and remand for resentencing consistent with Booker.

      VACATED and REMANDED.




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