                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              August 25, 2005
                             No. 04-16640                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 04-00014-CR-BAE-6-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DARVIS SMALL,
a.k.a. Roots,
a.k.a. Sean,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________
                            (August 25, 2005)


Before ANDERSON, DUBINA and WILSON, Circuit Judges.

PER CURIAM:
      Appellant Darvis Small appeals his 110-month sentence stemming from his

plea of guilty to distribution of 5 grams or more of cocaine base, in violation of 21

U.S.C. § 841(a)(1). Small was charged with distribution of approximately 24

grams of crack cocaine and aiding and abetting his co-defendant, Jennifer Blaine,

in the distribution of approximately 57 grams of crack cocaine, both in violation of

21 U.S.C. § 841(a).

      Pursuant to a plea agreement, Small pled guilty to distribution of 24 grams

of crack, and the aiding and abetting charge was dismissed. In calculating Small’s

sentence, the district court found that the 57-gram aiding and abetting charge was

relevant conduct in Small’s offense because Blaine stated that she obtained 57

grams of crack cocaine from Small and Small admitted that he supplied Blaine

with an amount of crack cocaine. As a result, the court found that Small was

responsible for a total of 82 grams of crack cocaine.

      On appeal, Small challenges the district court’s finding that the 57 grams of

crack was relevant conduct because the aiding and abetting charge was dismissed

and he did not admit the allegations made in the charge. He asserts that he was

denied his right to a jury trial and his case should be remanded for re-sentencing in

light of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621

(2005).



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      Because Small timely objected before the district court, we review his

Booker claim de novo. United States v. Gallegos-Aguero, 409 F.3d 1274, 1276

(11th Cir. 2005). We will reverse the district court’s decision only if the error was

harmful. Id.

      In Booker, the Supreme Court held “that 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.” United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied, 125 S. Ct. 2935

(2005) (citing Booker, 125 S. Ct. at 749-56). Based on this holding, we have found

“that the district courts could have made both a constitutional and a statutory error

in sentencing defendants pre-Booker.” United States v. Mathenia, 409 F.3d

1289,1291 (11th Cir. 2005). “The constitutional error is the use of extra-verdict

enhancements to reach a guidelines result that is binding on the sentencing judge;

the error is in the mandatory nature of the guidelines once the guidelines range has

been determined.” Id. (quotation omitted). “The statutory error occurs when the

district court sentences a defendant under a mandatory guidelines scheme, even in

the absence of a Sixth Amendment enhancement violation.” Id. (quotations

omitted).



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      In the present case, Small only asserts that the district court committed a

constitutional error based on its finding that he was responsible for 57 grams of

crack cocaine, in addition to the 24 grams for which he admitted his culpability. A

constitutional error is harmless, “where the government can show, beyond a

reasonable doubt, that the error did not contribute to the defendant’s ultimate

sentence.” Id.

      As a preliminary matter, we conclude that the district court did not err in

considering the 57 grams in count one as relevant conduct. Our precedent states

that “relevant conduct of which a defendant was acquitted nonetheless may be

taken into account in sentencing for the offenses of conviction, as long as the

government proves the acquitted conduct relied upon by a preponderance of the

evidence.” United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005)

(quotations omitted). Booker did not erode this precedent, but, instead, “suggests

that sentencing judges can continue to consider relevant acquitted conduct when

applying the Guidelines in an advisory manner.” Id. at 1305. Based on Blaine’s

statement that Small gave her the 57 grams of crack, and Small’s admission that he

gave Blaine a quantity of crack, the district court would not have erred in finding

that the 57 grams were relevant to Small’s distribution conviction if it had

considered that conduct under an advisory guideline system. However, the district



                                          4
court considered the relevant conduct under a mandatory guideline system, which

is error.

       Because nothing in the record indicates whether the district court would

have sentenced Small in a similar manner if, after calculating the applicable

guideline range, the guidelines were not mandatory, the government cannot show

beyond a reasonable doubt that the court’s error did not contribute to Small’s

sentence. Accordingly, we vacate Small’s sentence and remand this case for re-

sentencing.

       VACATED and REMANDED.




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