                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 05-15396                   JUNE 26, 2006
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                     D. C. Docket No. 04-00051-CR-002

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                   versus

TRACY KAPRICE COTTON,
                                                        Defendant-Appellant.

                        ________________________

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



                               (June 26, 2006)



Before ANDERSON, CARNES and PRYOR, Circuit Judges,

PER CURIAM:

     Tracy Kaprice Cotton appeals her 108-month sentence for attempting to
manufacture more than 50 grams of a mixture and substance containing a

detectable amount of methamphetamine, in violation of 21 U.S.C. § 846, which

was imposed upon resentencing under an advisory guidelines scheme after United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed 621 (2005). On appeal,

Cotton argues that the district court violated her Sixth Amendment right to trial by

jury, in light of Booker, when it enhanced her sentence based on facts that were not

charged in the indictment, proven to a jury, or admitted by her. She maintains that

even though the district court sentenced her under an advisory guidelines scheme,

because the court based its sentence upon guidelines that were calculated in

violation of her Sixth Amendment rights, the constitutional defect remains, and her

base offense level should have been calculated without any enhancements, so as

not to exceed the “prescribed statutory maximum.”

      Because Cotton raised a constitutional objection to her sentence before the

district court based on Booker, we review the constitutional issue de novo, but will

reverse only for a harmful error. See United States v. Paz, 405 F.3d 946, 948 (11th

Cir. 2005). In Booker, the Supreme Court held that the mandatory nature of the

Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial, and, as a remedy, excised the portion of the

guidelines mandating that district courts impose a sentence within the applicable



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guidelines range. Id. at 258-59, 125 S.Ct. at 764. We have held that, after Booker,

“the district court remains obliged to ‘consult’ and ‘take into account’ the

Guidelines in sentencing,” and “[t]his consultation requirement, at a minimum,

obliges the district court to calculate correctly the sentencing range prescribed by

the Guidelines.” United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005)

(emphasis in original). Also after Booker, a district court, in determining a

reasonable sentence, is required to take into account the advisory guidelines range

and the sentencing factors set forth in 18 U.S.C. § 3553(a). See Booker, 543 U.S.

at 259-60, 125 S.Ct. at 764-66. “The factors in § 3553(a) 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 Guidelines range.” United States v. Scott,

426 F.3d 1324, 1328-29 (11th Cir. 2005) (citing 18 U.S.C. § 3553(a)).

      Because Cotton was sentenced under an advisory guidelines scheme, no

constitutional error occurred in her resentencing. Accordingly, we affirm her

sentence.

      AFFIRMED.




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