                                                          [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               June 23, 2005
                                No. 04-15903
                                                             THOMAS K. KAHN
                            Non-Argument Calendar                CLERK
                          ________________________

                       D. C. Docket No. 04-00076-CR-4-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

BRENT DUDLEY JONES,
                                                              Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                                 (June 23, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

      Brent Dudley Jones appeals his concurrent 41-month sentences, imposed

after he pled guilty to charges of conspiracy to commit bank fraud and bank fraud,

in violation of 18 U.S.C. §§ 1344 and 371 and 2, based on his involvement in a
counterfeit check ring. On appeal, Jones argues that the district court erred by

calculating his sentence based on a loss amount that was greater than the amount of

the checks in the counts to which he pled guilty, and that was not admitted by him

or submitted to a jury, in violation of Blakely v. Washington, 542 U.S. ___, 124

S.Ct. 2531 (2004). Jones also contends that the district court erred by enhancing

his sentence based on his supervisory role in the offense, and that it was error for

the district court not to review his role in relation to that of the other participants.

                                 I. Constitutional Claim

       In the instant case, Jones objected to the Presentence Investigation Report

(“PSI”), and at sentencing, regarding the enhancement of his sentence based on

judicially-determined facts, and accordingly, preserved this issue for appeal.

Therefore, we review his sentence de novo, reversing only for harmful error.

United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). “[C]onstitutional errors

are harmless where the government can show, beyond a reasonable doubt, that the

error did not contribute to the defendant’s ultimate sentence.” United States v.

Mathenia, ___ F.3d ___ No. 04-15250 (11th Cir. May 23, 2005) (citing Paz, 405

F.3d at 948-49).

       In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63,

(2000), the Supreme Court held that, “[o]ther than the fact of a prior conviction,



                                             2
any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

The Supreme Court also held, in Blakely, that the imposition—based solely on the

sentencing judge’s factual findings—of a sentencing enhancement above the 53-

month standard range indicated in the State of Washington’s Sentencing Reform

Act violated the defendant’s Sixth Amendment rights because the facts supporting

the findings neither were admitted by the defendant, nor found by a jury. See

Blakely, 542 U.S. at ___, 124 S.Ct. at 2534-38. The Court in Blakely, however,

expressly stated that “[t]he Federal Guidelines are not before us, and we express no

opinion on them.” Blakely, 542 U.S. at ___, 124 S.Ct. at 2538 n.9.

      The Supreme Court, in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738

(2005), through Justice Steven’s majority opinion, ultimately found “no distinction

of constitutional significance between the Federal Sentencing Guidelines and the

Washington procedures at issue [in Blakely].” Booker, 543 U.S. at ___, 125 S.Ct.

at 749. Therefore, the Court concluded that the mandatory nature of the guidelines

rendered them incompatible with the Sixth Amendment’s guarantee to the right to

a jury trial. Id., 543 U.S. at ___, 125 S.Ct. at 749-51. The Court also explicitly

reaffirmed its rationale in Apprendi that “[a]ny fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum authorized by the



                                           3
facts established by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” Id., 543 U.S. at ___,

125 S.Ct. at 756. In United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005), petition for cert. filed, (U.S. Feb. 23, 2005) (No. 04-1148) (emphasis in

original), we stated that, under the holding in Booker, “the Sixth Amendment right

to trial by jury is violated where under a mandatory guidelines system a sentence is

increased because of an enhancement based on facts found by the judge that were

neither admitted by the defendant nor found by the jury.”

      Because Jones’s sentence was enhanced, under a mandatory guidelines

system, based on facts found by the judge and not admitted by Jones, the district

court committed constitutional error. Because it is not clear beyond a reasonable

doubt that this error was harmless, Jones’s sentence is vacated and remanded for

resentencing in light of Booker under the advisory guidelines system

                                II. Role Enhancement

      We recently stated that a district court’s obligation under Booker to consult

the guidelines, “at a minimum, obliges [it] to calculate correctly the sentencing

range prescribed by the Guidelines.” United States v. Crawford, 407 F.3d 1174,

1178 (11th Cir. 2005). We further stated that a district court’s misinterpretation of

the Sentencing Guidelines “effectively means that the district court has not



                                           4
properly consulted the Guidelines.” Id. at 1179 (internal quotations and citation

omitted). Because, under Booker, the district court still must consider the proper

application of the Sentencing Guidelines, we will address Jones’s challenge to the

§ 3B1.1(b) enhancement. See id.

      We review for clear error a district court’s determination of a defendant’s

role in the offense. United States v. DeVaron, 175 F.3d 930, 937 (11th Cir.) (en

banc). Section 3B1.1(b) provides for a three-level enhancement if a “defendant

was a manager or supervisor (but not an organizer or leader) and the criminal

activity involved five or more participants or was otherwise extensive.” U.S.S.G.

§ 3B1.1(b). “The government bears the burden of proving by a preponderance of

the evidence that the defendant had an aggravating role in the offense.” United

States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003). In determining the nature

of the defendant's role, the court may consider “the exercise of decision making

authority, the nature of participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger share of the fruits of the

crime, the degree of participation in planning or organizing the offense, the nature

and scope of the illegal activity, and the degree of control and authority exercised

over others.” U.S.S.G. § 3B1.1, comment. (n.4).

      Upon careful review of the record, and consideration of the parties’ briefs,



                                           5
we vacate and remand for resentencing. We note, on remand, however, that the

district court did not err factually by applying a three-level enhancement based on

Jones’s role as a manager of the scheme.

      VACATED AND REMANDED.




                                           6
