                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            NOVEMBER 9, 2005
                               No. 05-10356                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                D. C. Docket No. 03-00010-CR-ORL-22-DAB

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                    versus

JUAN FEDERICO BAUTISTA,

                                                         Defendant-Appellant.


                         ________________________

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

                              (November 9, 2005)


Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:

     Juan Federico Bautista appeals his sentence of ninety-seven months
imprisonment for conspiracy to import ecstasy in violation of 21 U.S.C. § 963. We

affirm.

       On October 21, 2004, a jury convicted Bautista of conspiracy to import

ecstasy. The scheme involved couriers who transported ecstasy from the

Dominican Republic, to Miami, Florida, by commercial airline. The jury made no

finding as to the number of ecstasy tablets for which Bautista was responsible.

       Following the trial, the United States Probation Office prepared a pre-

sentence investigation report. The PSI determined that the scheme involved four

couriers who made a total of five trips from the Dominican Republic to Miami,

each carrying one suitcase. Because authorities intercepted only one suitcase from

one of these trips, the PSI estimated the total amount of drugs involved. The PSI

considered that the intercepted suitcase contained 40,000 pills, and that the courier

who transported it was paid $4,500, the same amount as the other couriers. Based

on this evidence, the PSI concluded that each suitcase contained 40,000 tablets and

that Bautista was responsible for conspiring to import a total of 200,000 ecstacy

tablets.

       The PSI assigned Bautista a base offense level of 36 pursuant to United

States Sentencing Guidelines Manual § 2D1.1(c)(2) (2004), because 200,000

ecstasy tablets were the equivalent of 25,000 kilograms of marijuana. It assigned



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him a criminal history category of I because he had no criminal record. Before

sentencing, Bautista objected to the PSI on the grounds that Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), rendered the Guidelines

unconstitutional.

      Bautista was sentenced on January 13, 2005, the day after the Supreme

Court decided United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). At the

hearing, the district court considered how to sentence Bautista in light of Booker,

given the fact that the jury did not make a finding as to the amount of ecstasy

attributable to Bautista. The court initially considered sentencing Bautista to the

lowest base offense level for a crime involving ecstasy by attributing a drug

quantity of only one ecstasy tablet to him. The court then explained that because

“the guidelines are no longer mandatory,” it could determine a higher drug

quantity. The court found that Bautista was responsible for 40,000 ecstasy tablets,

stating “[t]here’s no doubt that the 40,000 pills were proven beyond a reasonable

doubt.” Bautista raised a Booker objection to the district court’s finding regarding

the drug quantity.

      The district court assigned Bautista a base offense level of 34 pursuant to

U.S.S.G. § 2D1.1(c)(3) because 40,000 ecstasy tablets were the equivalent of 5,000

kilograms of marijuana. The court did not adjust Bautista’s offense level. With an



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offense level of 34 and a criminal history category of I, the Guideline range for

sentencing Bautista was 151 to 188 months. The district court stated that this was

a “significantly long sentence for a nonviolent drug offense.” It therefore

sentenced him to only ninety-seven months imprisonment.

        On appeal, Bautista makes three arguments. We will consider them one at a

time.

                                            I.

        Bautista first argues that the district court erred when it found that he was

responsible for importing 40,000 ecstacy pills.

        We review the district court’s factual determination of the drug quantity for

clear error. See United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005),

cert. denied, 125 S. Ct. 2935 (2005). Because Bautista has objected to the court’s

factual finding, the Government bears the burden of establishing the disputed fact

by a preponderance of the evidence. See id.

        Where there is no drug seizure or the amount seized does not reflect the

scale of the offense, the district court must estimate the drug quantity. U.S.S.G. §

2D1.1 comment (n.12). The court may base its computation on evidence showing

the average frequency and amount of the defendant’s drug sales over a given

period of time. See Rodriguez, 398 F.3d at 1296. The sentence may be based on



                                            4
“fair, accurate, and conservative estimates of the quantity of drugs attributable” to

the defendant. Id. When the case involves a conspiracy, the court may consider all

reasonably foreseeable acts and omissions of other persons in furtherance of the

criminal scheme in calculating the defendant’s base offense level. U.S.S.G. §

1B1.3(a)(1)(B).

      Testimony at trial indicated that Bautista was directly involved in the receipt

of four suitcases that were never intercepted. Additionally, testimony indicated

that the scheme involved a fifth suitcase that was found to contain 40,000 tablets.

The courier from that trip testified that she could not remember who received that

suitcase. Notwithstanding that, Bautista may be held responsible for the

intercepted suitcase as a “reasonably foreseeable act” in furtherance of the

conspiracy. U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, we conclude that the district

court did not commit clear error when it attributed 40,000 tablets to Bautista.

                                          II.

      Bautista next argues that the district court committed constitutional error

when it determined that he was responsible for importing 40,000 ecstacy tablets.

Bautista argues that the district court made this finding in the absence of a jury

finding, an admission by him, or proof beyond a reasonable doubt of the drug

quantity.



                                           5
      As a preliminary matter, we note that Bautista has preserved his Booker

claim for appellate review. See United States v. Dowling, 403 F.3d 1242, 1246

(11th Cir. 2005), cert. denied, __ S. Ct. __ (2005). Before sentencing, he objected

to the PSI on the grounds that Blakely rendered the Sentencing Guidelines

unconstitutional. At sentencing, he raised a Booker objection to the district court’s

finding of the drug quantity attributable to him.

      We review Bautista’s Booker claim de novo and reverse only if the error

was harmful. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We

stated in Rodriguez that constitutional Booker error is not the application of “extra-

verdict enhancements.” Rodriguez, 398 F.3d at 1300–01. The error occurs when

those enhancements are applied in a mandatory Guidelines system. Id.; see also

United States v. Duncan, 400 F.3d 1297, 1302 (11th Cir. 2005) (“Rodriguez

explain[ed] how we know that the same enhancements made in a non-mandatory

Guidelines system are constitutionally permissible, and thus how we know that the

error was the failure to treat the Guidelines as advisory.”), cert. denied, __ S. Ct. __

(2005).

      The district court did not commit constitutional Booker error when it

sentenced Bautista based on a drug quantity not admitted by him or decided by a

jury beyond a reasonable doubt. During the sentencing hearing the court explained



                                           6
that it could attribute 40,000 tablets to Bautista instead of one ecstasy tablet (the

lowest quantity for an offense involving ecstasy), because “the guidelines are no

longer mandatory.” This statement, and the fact that the final sentence was lower

than the Guideline range, make it clear that the court treated the Guidelines as

discretionary.

                                          III.

      Finally, Bautista argues that his sentence was not reasonable based on the

factors listed at 18 U.S.C. § 3553.

      Once the district court accurately calculates the Guideline range, it may

impose a more severe or more lenient sentence. See United States v. Winingear,

422 F.3d 1241, 1244 (11th Cir. 2005). Following Booker, we review the district

court’s departure from the Guideline range for reasonableness. Id. We evaluate

whether the sentence was reasonable in light of the factors listed in 18 U.S.C. §

3553(a). These factors include: (1) the nature and circumstances of the offense; (2)

the history and characteristics of the defendant; (3) the need for the sentence

imposed to reflect the seriousness of the offense, to promote respect for the law,

and to provide just punishment; (4) the need to protect the public; and (5) the

Guideline range. 18 U.S.C. §3553(a).

      Applying the § 3553(a) factors to this case, we consider that Bautista was



                                            7
intimately involved in the conspiracy to import ecstasy. He met couriers shortly

before their departure to the Dominican Republic. He was present when they

returned with their suitcases filled with ecstasy. In some cases, he even directly

received the suitcases. We also consider that the district court, in calculating his

Guideline range, attributed 40,000 ecstacy pills to him. This was the amount that

resulted from only one courier trip to the Dominican Republic. Furthermore,

although Bautista had no criminal history, we consider that his Guideline range

was 151 to 188 months imprisonment and the district court’s sentence of 97

months was 54 months below the lowest point of his Guideline range. For these

reasons, the district court’s sentence was more than reasonable. Bautista should

consider himself fortunate to have received that sentence.

      AFFIRMED.




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