                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                   JULY 28, 2005
                                  No. 04-15854                   THOMAS K. KAHN
                              Non-Argument Calendar                   CLERK
                            ________________________

                        D. C. Docket No. 03-60275-CR-WJZ

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

      versus

ALBERT WOOLRIDGE,

                                                                Defendant-Appellant.

                            ________________________

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

                                   (July 28, 2005)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

      Appellant Albert Woolridge, through counsel, appeals his 57-month

sentence for conspiracy to possess with the intent to distribute 3, 4-
methylenedioxy-methamphetamine hydrochloride (“MDMA” or “ecstacy”) and

gamma hydroxybutyric acid (“GHB”), pursuant to 21 U.S.C. §§ 846 and

841(b)(1)(C). Woolridge contends that the district court erred under United States

v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), because it

sentenced him based on a drug quantity not alleged in the indictment or admitted

by Woolridge. He argues that it is “irrelevant . . . that [he] might have

acknowledged a greater quantity of ecstasy and GHB, upon the court’s probing,

and after the prosecutor’s factual proffer, at his plea colloquy” because they were

not “stipulations” contemplated by Blakely v. Washington, 542 U.S. ___, 124 S. Ct.

2531, 159 L. Ed. 2d 403 (2004), since they were not in writing. He argues that the

admission of the drug quantity was not voluntary because he did not know his

rights under Blakely at the time of the plea colloquy. He also argues that the

district court erred in sentencing him pursuant to a mandatory Guidelines system

and failing to “consider the many other listed factors” in 18 U.S.C. § 3553(a).

      In Booker, the Supreme Court explicitly reaffirmed its rule first pronounced

in Apprendi that “[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts established by a

plea of guilty or a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.” Booker, 543 U.S. at ___, 125 S. Ct. at 756. The



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Supreme Court held that the Federal Sentencing Guidelines violate the Sixth

Amendment right to a jury trial to the extent that they permit a judge to increase a

defendant’s sentence based on facts that are neither found by a jury nor admitted

by the defendant. Id. at ___, 125 S. Ct. at 746-56.

       In Booker, the Supreme Court also extended Blakely and held that the

mandatory nature of the Federal Sentencing Guidelines rendered them

incompatible with the Sixth Amendment’s guarantee to the right to a jury trial.

Booker, 543 U.S. at ___, 125 S. Ct. at 749-52. In a second and separate majority

opinion, the Court in Booker concluded that, to best preserve Congress’s intent in

enacting the Sentencing Reform Act of 1984, the appropriate remedy was to

“excise” two specific sections—18 U.S.C. § 3553(b)(1) (requiring a sentence

within the guideline range, absent a departure) and 18 U.S.C. § 3742(e)

(establishing standards of review on appeal, including de novo review of

departures from the applicable guideline range)—thereby effectively rendering the

Sentencing Guidelines advisory only. Id. at ___, 125 S. Ct. at 764. The Supreme

Court noted, however, that courts must continue to consult the Guidelines, together

with the factors listed in 18 U.S.C. § 3553(a).1 Id.


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          These factors include, inter alia, the nature and circumstances of the offense, the history
and characteristics of the defendant, the need for adequate deterrence, protection of the public, the
pertinent Sentencing Commission policy statements, and the need to avoid unwarranted sentencing
disparities. See 18 U.S.C. § 3553(a).

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      We have explained that there are two types of Booker error: (1) Sixth

Amendment error based upon sentencing enhancements neither admitted by the

defendant nor submitted to a jury and proven beyond a reasonable doubt; and

(2) error based upon sentencing under a mandatory Guidelines system. United

States v. Shelton, 400 F.3d 1325, 1329-31 (11th Cir. 2005). There is no Sixth

Amendment error under Booker where the defendant has admitted to facts later

used by the district court to enhance a sentence. Id. at 1330. Even in the absence

of a Sixth Amendment violation, however, Booker error exists where the district

court imposes a sentence under a mandatory Guidelines system. Id. at 1330-31;

see also United States v. Rodriguez, 398 F.3d 1291, 1300-01 (11th Cir.) (holding

that error under Booker is not the application of extra-verdict enhancements but,

rather, the application of such enhancements under a mandatory Guidelines

system), cert. denied, ___ S. Ct. ___ (June 20, 2005).

The Sentence Based on Drug Quantity

      Where a constitutional claim under Booker was preserved in the district

court, as here, we review the case de novo but will reverse and remand only for

harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). “To find

harmless error, we must determine that the error did not affect the substantial rights

of the parties.” Id. (quotation omitted); see also Fed. R. Crim. P. 52(a) (providing



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that “[a]ny error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded”). Furthermore,

      [a] constitutional error, such as a Booker error, must be disregarded as
      not affecting substantial rights, if the error is harmless beyond a
      reasonable doubt. This standard is only met where it is clear beyond a
      reasonable doubt that the error complained of did not contribute to the
      sentence obtained. The burden is on the government to show that the
      error did not affect the defendant’s substantial rights.

Paz, 405 F.3d at 948 (quotations, alterations, and citations omitted).

      In the instant case, Woolridge’s claim that he did not properly admit to the

drug quantity at his plea colloquy because it was not in writing or voluntary is

without merit. The record demonstrates that Woolridge admitted to the drug

quantity at his plea colloquy and failed to object to the facts contained in the

presentence investigation report (“PSI”), and, thus, we conclude that his sentence

complies with Booker. See Shelton, 400 F.3d at 1330 (holding under plain-error

review that the district court did not err under the Sixth Amendment because the

defendant admitted to the relevant drug-quantity facts at both his plea and

sentencing hearings, and did not object to the factual accuracy of the PSI). In

addition, there is no requirement that the admission has to be in writing. See id.

We also reject Woolridge’s argument that his admissions as to drug quantity at his

plea hearing were not voluntary because he did not understand his rights under

Booker.

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The District Court’s Treatment of the Guidelines as Mandatory

      Woolridge’s preserved challenge under Blakely and Booker also preserved

his claim on appeal under Booker regarding the advisory nature of the Guidelines.

See United States v. Dowling, 403 F.3d 1242, 1244-46 (11th Cir. 2005) (addressing

a claim that the sentencing court erred in applying “the Federal Sentencing

Guidelines as mandatory” and noting that the claim would be preserved with a

“citation to Apprendi or to other cases in that line of cases”). We recently

determined that

      [t]here are two harmless error standards. One of them applies to
      Booker constitutional errors, the other to Booker statutory errors. . . .
      Booker statutory errors . . . are subject to [a] less demanding test that
      is applicable to non-constitutional errors. A non-constitutional error
      is harmless if, viewing the proceedings in their entirety, a court
      determines that the error did not affect the sentence, or had but very
      slight effect. If one can say with fair assurance that the sentence was
      not substantially swayed by the error, the sentence is due to be
      affirmed even though there was error.

United States v. Mathenia, 409 F.3d 1289, (11th Cir. 2005) (citations, quotations,

and alterations omitted). We have stated that a Booker error is harmless when the

district court pronounces an alternate sentence depending on whether the

Sentencing Guidelines became invalid and that sentence is the same. United States

v. Petho, 409 F.3d 1277, (11th Cir. 2005).

      In the instant case, we conclude that the district court committed error in



                                           6
applying the Guidelines as mandatory. See Booker, 543 U.S. ___, 125 S. Ct. at

749-52. However, the district court indicated that it would have imposed an

identical sentence if the Guidelines became invalid. Accordingly, the government

has met its burden of showing that the error in sentencing Woolridge under a

mandatory Guideline scheme was harmless. See Petho, 409 F.3d at 1277.

Accordingly, we affirm Woolridge’s sentence.

      AFFIRMED.




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