                                                    [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                               FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                        February 13, 2006
                            No. 05-14657
                                                        THOMAS K. KAHN
                        Non-Argument Calendar               CLERK
                      ________________________

                 D. C. Docket No. 04-00025-CR-1-SPM

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

MARCUS H. RICHARDS,
a.k.a. Big Boy,
a.k.a. Pie

                                                        Defendant-Appellant.


                      ________________________

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

                          (February 13, 2006)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Marcus H. Richards appeals his 240-month sentence for conspiracy to

distribute and possess with intent to distribute five or more kilograms of cocaine.

On appeal, Richards contends that the district court erred when it calculated his

guideline range because it found that he was responsible for 432 kilograms of

cocaine, a fact which he did not admit at the plea hearing. Richards argues that,

due to this error, his guideline range was calculated improperly, and his sentence

was enhanced in violation of United States v. Booker, 543 U.S. 220 (2005).

      Because Richards objected to the PSI’s calculation of the drug quantity, we

review the issue de novo, but will reverse only for a harmful error. United States

v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). There are two harmless error

standards; one applies to Booker constitutional errors, and the other to Booker

statutory errors. United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005).

A constitutional error, such as the error alleged here, is “harmless where the

government can show, beyond a reasonable doubt, that the error did not contribute

to the defendant’s ultimate sentence.” Id.

      In United States v. Raad, 406 F.3d 1322 (11th Cir. 2005), the defendant was

sentenced to the mandatory minimum, but challenged the district court’s

calculation of the guideline range. Id. at 1323 n.1. We held that:

      Because we conclude that the district court correctly imposed the
      statutory mandatory minimum sentence, any error in the guidelines

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      calculations is harmless and we need not address these arguments.
      Additionally, there is no merit to [the defendant]’s claim that his
      sentence is unconstitutional in light of [Booker]. [The defendant] was
      sentenced to the mandatory minimum sentence based on the facts to
      which he pleaded guilty.

Id.; see also United States v. Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir. 2005)

(explaining that district courts remain bound by statutory minimum sentences

despite Booker’s remedial holding that the Sentencing Guidelines are merely

advisory).

      Section 841 of Title 21 states, in relevant part, that if a person knowingly

possesses with intent to distribute 5 kilograms or more of cocaine and commits

such an offense after a prior conviction for a felony drug offense, the mandatory

minimum sentence is 20 years. 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II). Section

846 applies this same sentence when possession with intent to distribute is the

object of a conspiracy. 21 U.S.C. § 846.

      In this case, Richards conceded at sentencing that, as part of the conspiracy,

he was personally responsible for more than five kilograms of cocaine.

Furthermore, he waived any objection to the use of a prior felony drug conviction

to enhance his sentence. Richards expressly acknowledged because he pled guilty

to conspiracy to distribute and possess with intent to distribute more than five

kilograms of cocaine, and he previously was convicted of a felony drug crime, the



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statutory minimum was 20 years' imprisonment. See Raad, 406 F.3d at 1323 n.1.

Because the district court correctly imposed the statutory mandatory minimum

sentence, any error in the guideline range calculation was harmless.

      AFFIRMED.




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