                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             JUNE 16, 2005
                              No. 01-11738                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 98-00302-CR-T-24C

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

     versus

RAWLE ARNOLD MOHAMMED,
a.k.a. Jason Furlow, etc.

                                                          Defendant-Appellant.
                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________
                              (June 16, 2005)

                       ON REMAND FROM THE
                 SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     On March 11, 2004, we affirmed the 156 months’ prison sentence appellant
received for conspiring to possess cocaine with the intent to distribute, in violation

of 21 U.S.C. § 846.1 United States v. Mohammed, 99 Fed. Appx. 885, 2004 WL

625760 (11th Cir. March 11, 2004). In affirming appellant’s sentence, we rejected

appellant’s claim that the district court committed a Sixth Amendment error in

basing the sentence on “uncharged drug quantities in violation of Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).” 2

       On July 19, 2004, appellant petitioned the United States Supreme Court for a

writ of certiorari; in support of his petition, he cited Blakely v. Washington, 542

U.S. ____, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), a decision the Court handed

down on June 24, 2004. In Blakely, the Court, applying Apprendi to a state

guidelines-sentencing scheme similar to the federal guidelines-sentencing scheme,

held that the Sixth Amendment (made applicable to the States through the

Fourteenth Amendment) barred the sentencing judge from enhancing Blakely’s

sentence based on facts neither admitted by the defendant nor found by a jury

beyond a reasonable doubt.3 Blakely v. Washington, 542 U.S. at ____, 124 S. Ct.


       1
         The sentence was imposed following appellant’s plea of guilty pursuant to a plea
agreement with the Government.
       2
           Appellant’s “contention [was] based on the notion that he only pled guilty to conspiring
to distribute ‘a detectable amount of cocaine,’ not a specific quantity. United States v. Mohammed,
99 Fed. Appx. 885, 2004 WL 625760 (11th Cir. March 11, 2004).
       3
          Blakely pled guilty to kidnaping his estranged wife. A jury was not empaneled to find the
facts the court used to enhance Blakely’s sentence.

                                                2
at 2537. In the case at hand, the Supreme Court granted Mohammed’s petition for

a writ of certiorari, vacated our judgment, and remanded this case “for further

consideration in light of United States v. Booker, 543 U.S. ____ (2005).”

Mohammed v. United States, ___ U.S. ____, 125 S. Ct. 1023, 160 L. Ed. 2d

1004(2005).

       Because appellant timely presented his Apprendi objection to the district

court and to this court in his initial brief, we treat his objection as preserving the

error recognized in Blakely and now in United States v. Booker, 533 U.S. ____,

125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). United States v. Reese, 382 F.3d 1308,

1309 (11th Cir. 2004), modified on other grounds, 397 F.3d 1337 (11th Cir. 2005).

       In pleading guilty, appellant admitted that he conspired to distribute “a

detectable amount of cocaine,” not a specific quantity. The presentence

investigation report (“PSI”) prepared by the district court’s probation office held

(on the basis of facts reported to the probation office) appellant “accountable for 43

kilograms of cocaine,” a quantity carrying a base offense level of 34.4 The PSI

then increased this level by two levels for obstruction of justice, U.S.S.G. § 3C1.1,

and two levels for appellant’s leadership role in the conspiracy, U.S.S.G. §

3B1.1(c), and thus arrived at an adjusted offense level of 38. Given appellant’s


       4
         U.S.S.G. § 2D1.1(c)(3) provided a base offense level of 34 for offenses involving at least
15 kilograms but less than 50 kilograms of cocaine.

                                                3
criminal history category of I, level 38 yielded a sentence range calling for a prison

sentence at a point between 235 and 293 months, inclusive.

       At sentencing, the court, in addressing appellant’s objections to the PSI,

declined to make the § 3B1.1(c) adjustment, and held appellant accountable for

10.3 kilograms of cocaine, instead of 43 kilograms as the PSI recommended. This

lowered appellant’s adjusted offense level to 32,5 with a sentence range of 151 to

188 months’ imprisonment. The court then sentenced appellant to a prison term of

156 months.

       As stated above, this is a preserved-error case, not a plain-error case.

Therefore, to avoid the vacation of appellant’s sentence and a remand for

resentencing, the Government must show that the error did not affect appellant’s

“substantial rights,” Fed. R. Crim. P. 52(a); indeed, the Government must establish

that, absent the error, appellant would not have received a lesser sentence. See

United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), reh’g en banc denied,

406 F.3d 1261 (2005), petition for cert. pending, _____.            As the Rodriguez panel

expressed it, if, after reviewing the record of the sentencing proceeding in this case,

“we just don’t know” whether the district court would have imposed the same

sentence, the Government loses. Id. at 1301. In this case, after reviewing the


       5
         U.S.S.G. § 2D1.1(c)(4) provided a base offense level of 32 for offenses involving at least
5 kilograms but less than 15 kilograms of cocaine.

                                                4
record, we can’t say what sentence the court would have imposed had it treated the

Guidelines as advisory rather than mandatory.

      Appellant’s sentence is accordingly vacated and the case is remanded for

resentencing in accordance with Booker’s holdings.

      SO ORDERED.




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