                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT             FILED
                       _____________________________U.S. COURT OF APPEALS
                                                     ELEVENTH CIRCUIT
                                                        APR 13, 2006
                                No. 04-12918
                       _____________________________ THOMAS K. KAHN
                                                          CLERK

                  D. C. Docket No. 03-00009 CR-FTM-29-DNF


UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,
      versus

ANTHONY BERTUCCI,

                                                    Defendant-Appellant.

                          ________________________

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

                                 (April 13, 2006)

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

PER CURIAM:

      Anthony Bertucci (“Defendant”) was convicted of conspiracy to possess

with intent to distribute 100 kg or less of marijuana. Defendant attacks his
conviction on two grounds. First, Defendant argues the district court erred by

denying his motion to suppress evidence seized from his residence. Because this

evidence was obtained pursuant to a search warrant supported by recent evidence

of trash pulls and an indictment that corroborated older information that Defendant

was distributing drugs from his house, the evidence was properly admitted.

Second, Defendant argues he is entitled to a new trial, because the evidence at trial

established multiple conspiracies, not the single conspiracy indicted. Assuming

that the evidence did establish multiple conspiracies, Defendant would still not be

entitled to reversal of his conviction, because he has not shown substantial

prejudice. See U.S. v. Coy, 19 F.3d 629, 633 (11th Cir. 1994). Third, Defendant

challenges his sentence, arguing the district court committed reversible

constitutional error under United States v. Booker, 125 S.Ct. 738 (2005). The

government concedes this error. And we accept that there is harmful error. We

affirm Defendant’s conviction, but vacate the sentence and remand for

resentencing.

      AFFIRMED in part, VACATED in part, and REMANDED.




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