                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3740
                                   ___________

United States of America,          *
                                   *
     Appellee,                     *
                                   * Appeal from the United States
          v.                       * District Court of the Northern
                                   * District of Iowa
Manuel Humberto Michel-Galaviz,    *
                                   *
     Appellant,                    *
                                   *
                              ___________

                             Submitted: June 21, 2005
                                Filed: July 28, 2005
                                 ___________

Before RILEY, BOWMAN, and BENTON Circuit Judges.
                           ___________

BENTON, Circuit Judge.

       Manuel Humberto Michel-Galaviz was indicted for possession with intent to
distribute 2,609.1 grams of a methamphetamine mixture containing 1,519.817 grams
of meth, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii), and 18 U.S.C. § 2.
Galaviz moved to strike surplusage from the indictment, but the district court denied
his motion. He then entered a conditional guilty plea, reserving the right to appeal
the denial of the motion, and the constitutionality of the United States Sentencing
Guidelines. The district court sentenced Galaviz to 168 months imprisonment and
five years supervised release. Galaviz appeals. Jurisdiction being proper under 28
U.S.C. § 1291, this court affirms in part, reverses in part, and remands for
resentencing.

                                          I.

      Galaviz argues that the district court erred in denying his motion to strike
surplusage from the indictment. He notes that 21 U.S.C. § 841(b)(1)(A)(viii) refers
only to "50 grams or more of methamphetamine" and "500 grams or more of a
mixture of substance containing a detectable amount of methamphetamine."
Therefore, he reasons that the specific quantity of drugs – in this case 2,609.1 grams
of meth mixture, containing 1,519.817 grams of meth – should be stricken as
surplusage.

      This court reviews for abuse of discretion the denial of a motion to strike
surplusage from an indictment. See United States v. Figueroa, 900 F.2d 1211, 1218
(8th Cir. 1990) cert. denied, 496 U.S. 942 (1990). "A motion to strike surplusage
from an indictment . . . should be granted only where it is clear that the allegations
contained therein are not relevant to the charge made or contain inflammatory and
prejudicial matter." Dranow v. United States, 307 F.2d 545, 558 (8th Cir. 1962).

       Here, the amount of meth alleged in the indictment is relevant to a violation of
21 U.S.C. § 841, which prohibits the unlawful act of possession with the intent to
distribute. The quantity of drugs is relevant to proving intent to distribute. United
States v. Shubel, 912 F.2d 952, 956 (8th Cir. 1990).

      The amount of meth alleged is neither inflammatory nor prejudicial. The
quantity the government intends to prove is not unfairly inflammatory, or unfairly
prejudicial. The district court, therefore, did not abuse its discretion in denying the
motion to strike the quantities from the indictment.



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        Galaviz finally argues that even if the district court correctly denied the motion,
it erred in refusing his plea to the threshold amounts in § 841 (b)(1)(A)(viii) – which
could authorize a lesser sentence. To the contrary, a district court has "broad
discretion" in deciding to accept or reject a guilty plea. See United States v.
Bettelyoun, 503 F.2d 1333, 1336 (8th Cir. 1974). A defendant has no absolute right
to plead guilty to a charge other than that in the indictment. See United States v.
Gray, 448 F.2d 164, 167-68 (9th Cir. 1971) cert. denied, 405 U.S. 926 (1972); cf.
Lynch v. Overholser, 369 U.S. 705, 731 (1962). In this case, the amount alleged
"serves a valid and useful purpose in that it gives notice to the defendant from the
start that the government intends to seek the enhanced sentence if the defendant is
convicted." See United States v. Bates, 77 F.3d 1101, 1105 (8th Cir. 1996) cert.
denied, 519 U.S. 884 (1996); United States v. Washington, 992 F.2d 785, 787 (8th
Cir. 1993) cert. denied, 510 U.S. 936 (1993). The district court did not abuse its
broad discretion in refusing Galaviz's attempted plea.


                                            II.

       Galaviz asserts that the sentencing guidelines are unconstitutional under
Blakely v. Washington, 124 S.Ct. 2531 (2004). In United States v. Booker, __ U.S.
__, 125 S.Ct. 738, 757 (2005), the Supreme Court held that mandatory application of
the guidelines violates the Sixth Amendment principles articulated in Blakely.
District courts must consult the guidelines in an advisory nature, and take them into
account when sentencing. Booker, 125 S.Ct. at 757-67. Booker also instructs that
"in cases not involving a Sixth Amendment violation, whether resentencing is
warranted may depend upon the application of the harmless-error doctrine." Id. at
769.

       In this case, there is no Sixth Amendment violation resulting from judge-found
facts. Id. at 749. An error (understandably) resulted from use of the mandatory
federal sentencing guidelines, as opposed to the Booker advisory system. See United

                                           -3-
States v. Haidley, 400 F.3d 642, 644 (8th Cir. 2005). The government bears the
burden of proving that the district court's mandatory application of the guidelines did
not affect Galaviz's substantial rights and is therefore harmless error. See id.
       The government cannot meet that burden. The district court sentenced Galaviz
to 168 months imprisonment, assuming the guidelines were mandatory. However,
the court issued an alternative sentence of 120 months imprisonment, "[i]f the United
States Sentencing Guidelines are found unconstitutional." Before stating this
alternative sentence, the court consulted 18 U.S.C. § 3553(1)-(7), thus following
Booker as to the alternative sentence. The record indicates – beyond either a grave
or a reasonable doubt1 – that Galaviz would not have been sentenced the same under
the Booker advisory system. This court vacates Galaviz's sentence and remands for
resentencing.
     This district court's judgment is reversed in part, affirmed in part, and the case
remanded for resentencing.


                      ________________________________




      1
        As in Haidley, this court need not resolve whether the burden is beyond a
"grave doubt" or a "reasonable doubt." 400 F.3d at 644.

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