                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT         FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               June 10, 2005
                               No. 04-15049
                                                            THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                   D.C. Docket No. 03-00073-CR-OC-10-GRJ

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellant,

      versus

BYRON BRYAN,

                                                          Defendant-Appellee.

                        __________________________

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

                                (June 10, 2005)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      The government appeals Byron Bryan’s 121-month sentence for conspiracy

to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846, and possession

with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C).

       Sentencing took place before the Supreme Court announced United States v.

Booker, 543 U.S.___, 125 S. Ct. 738 (2005).1 At sentencing, the district court

concluded that it did not have the constitutional authority to enhance Bryan’s

sentence based upon a quantity of drugs that exceeded the quantity contained in

the indictment in light of Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531,

159 L.Ed.2d 403 (2004). The government objected at sentencing and argues that

the district court erred by extending Blakely to the Sentencing Guidelines and

refusing to enhance Bryan’s sentence based on the sentencing guidelines even

though the court decreased Bryan’s sentence based upon a reduction for

acceptance of responsibility pursuant to the guidelines.

           In Booker, the Supreme Court held that the mandatory nature of the Federal

Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial. Booker, 543 U.S. at ___, 125 S.Ct. at 749-52.

In a second and separate majority opinion, the Court in Booker concluded that, to



       1
        Both parties’ briefs in this appeal were filed prior to the Supreme Court’s recent decision
in Booker. Therefore, we requested and received supplemental briefing on the effect of Booker.

                                                2
best preserve Congress’s intent in enacting the Sentencing Reform Act of 1984,

the appropriate remedy was to “excise” two specific sections—18 U.S.C.

§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)

and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de

novo review of departures from the applicable guideline range)—thereby

effectively rendering the Sentencing Guidelines advisory only. Id. at ___, 125

S.Ct. at 764. The Supreme Court noted, however, that courts must continue to

consult the Guidelines, together with the factors listed in 18 U.S.C. § 3553(a).2 Id.

The Court further indicated that both its “Sixth Amendment holding and . . .

remedial interpretation of the Sentencing Act” must be applied to “all cases on

direct review.” Id. at ___, 125 S.Ct. at 769.

       One of Booker’s two defendants, Ducan Fanfan, was sentenced based upon

the district court’s partial application of the Guidelines. Booker, 543 U.S. at ___,

125 S.Ct. at 747. Specifically, the district court in Fanfan’s case refused to apply

enhancements for additional drug quantities exceeding the quantities contained in

the indictment or in the jury’s verdict, or for Fanfan’s role in the offense, but did



        2
         These factors include, inter alia, the nature and circumstances of the offense, the history and
characteristics of the defendant, the need for adequate deterrence, protection of the public, the
pertinent Sentencing Commission policy statements, and the need to avoid unwarranted sentencing
disparities. See 18 U.S.C. § 3553(a).

                                                   3
apply other provisions of the Guidelines that it found did not implicate the Sixth

Amendment. Id. The Supreme Court held that Fanfan’s sentence did not violate

the Sixth Amendment because it did not exceed the sentence authorized by the

jury’s verdict. Id. at ___, 124 S.Ct. at 769. Nevertheless, the Court vacated

Fanfan’s sentence to allow the government to seek resentencing consistent with

Booker. Id.

       Because the district court erred in light of Blakely and Booker by failing to

properly calculate and consider the advisory Sentencing Guidelines range, we

vacate and remand Bryan’s sentence to the district court for resentencing

consistent with Booker.3

       Upon careful review of the sentencing transcript and the presentence

investigation report, and upon consideration of the parties’ briefs, we find

reversible error.

       VACATED AND REMANDED.




       3
                 Bryan does not argue that the Booker error was harmless, but rather urges this Court
to ignore the error and simply review for reasonableness. However, “once the court of appeals has
decided that the district court misapplied the Guidelines, a remand is appropriate unless the
reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error
did not affect the district court's selection of the sentence imposed.” Williams v. United States, 503
U.S. 193, 203, 112 S.Ct. 1112, 1120-21 (1992).


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