                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                               No. 05-14900                ELEVENTH CIRCUIT
                           Non-Argument Calendar               MAY 18, 2006
                         ________________________           THOMAS K. KAHN
                                                                 CLERK
                 D. C. Docket No. 03-00217-CR-ORL-22-JGG

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellant,

                                    versus

SAINT R. MURPHY,

                                                         Defendant-Appellee.

                         ________________________

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

                                (May 18, 2006)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

      This is the second time we consider Saint R. Murphy’s sentence on appeal.

We previously vacated and remanded Murphy’s 292-month sentence, for

conspiring to possess with intent to distribute 5 kilograms or more of cocaine
hydrochloride and 50 grams or more of cocaine base, in violation of 21 U.S.C.

§§ 846, 841(a)(1) and (b)(1)(A)(ii), for resentencing under the now-advisory

Sentencing Guidelines, pursuant to United States v. Booker, 543 U.S. 220 (2005).

See United States v. Murphy, No. 04-16312 (11th Cir. May 5, 2005) (unpublished

order granting government’s motion to remand for resentencing) (“Murphy I”). In

this appeal, “Murphy II,” the government appeals the 188-month sentence imposed

at the resentencing hearing. On appeal, the government argues that the district

court erred as a matter of law by determining that Murphy could be sentenced only

on the basis of the drug quantities charged in the indictment, to which he pled

guilty, rather than based on the district court’s own findings of greater drug

quantities. The government asserts that after Booker a district court may impose a

sentence based on judicial findings of fact that go beyond the facts charged in the

indictment and the defendant’s admissions, so long as the district court does not do

so under a mandatory Guidelines regime.

      Upon careful review of the record and the parties’ arguments, and in light of

our intervening caselaw concerning sentencing after Booker, which we observe

was not available to the district court when it resentenced Murphy, we again vacate

Murphy’s sentence and remand for resentencing.




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      The relevant facts and procedural history follow. On January 21, 2004, by

superseding indictment, Murphy, along with 3 co-defendants, was charged with

conspiring to possess with intent to distribute 5 kilograms or more of cocaine

hydrochloride and 50 grams or more of cocaine base, in violation of 21 U.S.C.

§§ 846, 841(a)(1) and (b)(1)(A)(ii).         Murphy pled guilty and proceeded to

sentencing for the first time in Murphy I.

      According to the presentence investigation report (“PSI”), Murphy was

arrested after another individual, who was cooperating with authorities, provided

information about drug trafficking activities in Daytona Beach, Florida.       The

cooperating witness estimated that Murphy and his brother purchased 10 to 45

kilograms of cocaine twice monthly. A confidential informant also advised law

enforcement agents that on one occasion he or she transported between 60 and 80

kilograms of cocaine base to Murphy and his brother. The PSI stated that the total

quantity of drugs attributable to Murphy exceeded 150 kilograms of cocaine

hydrochloride and 1.5 kilograms of cocaine base.

      Murphy raised two objections to the PSI, including, pursuant to Blakely v.

Washington, 542 U.S. 296 (2004), that the Federal Sentencing Guidelines were

unconstitutional and that he should be sentenced without regard to the base offense

level established by the Guidelines and his criminal history. He also disputed the



                                             3
PSI’s determination of drug quantity, arguing that he pled guilty to only the

amount charged in the indictment, which was 5 kilograms or more of cocaine

hydrochloride and 50 grams or more of cocaine base.

      On September 17, 2004, at the first sentencing hearing, the district court

overruled Murphy’s Blakely claim, noting that this Court had determined that the

Blakely holding did not apply to the Guidelines. After considering the testimony

of three cooperating co-conspirators, the district court specifically found that

Murphy’s crime involved 150 kilograms or more of cocaine hydrochloride and 1.5

kilograms of cocaine base. Based on this finding, the PSI’s recommendations, and

Murphy’s adjusted offense level of 36 and criminal history category V, Murphy

faced a Guidelines sentencing range of 292 to 365 months’ imprisonment. The

district court imposed a 292-month term of imprisonment, followed by 5 years’

supervised release. The government inquired whether the district court would have

imposed the same sentence if the Guidelines were declared unconstitutional, to

which the district court responded it would have imposed a 150-month sentence

based on the drug quantity to which Murphy pled rather than the amount calculated

in the PSI.

      In Murphy I, Murphy appealed to this Court, arguing that he was entitled to

be resentenced under Booker, which issued after his sentence was imposed and



                                        4
while his appeal was pending here. The government filed a “Motion for Order

Certifying that Remand for Resentencing is Warranted” based on the district

court’s comments at sentencing that if the Guidelines had not been mandatory, the

court would have imposed a lower sentence. The district court also certified that

resentencing was warranted and we vacated Murphy’s sentence and remanded the

case for a new sentencing hearing, during which the district court could consider

the Guidelines as advisory. We provided the following guidance to the district

court in our Murphy I remand order:

      At the new sentencing hearing, the District Court is still required to
      make guidelines calculations, should determine the guidelines range,
      and shall consider the guidelines range along with the statutory factors
      contained in 18 U.S.C. § 3553(a). See U.S. v. Rodriguez, 398 F.3d
      1291, 1300 (11th Cir. 2002) (Stating “the guidelines range is now
      advisory; it no longer dictates the final sentencing result but instead is
      an important factor that the sentencing court is to consider along with
      the factors contained in § 3553(a) in reaching the sentencing result.”).

Id.

      On August 2, 2005, at the resentencing hearing, which forms the basis of the

government’s instant appeal, Murphy reiterated his argument that the district court

could not find drug quantities exceeding the amounts charged in the indictment or

admitted by him.      The government responded that, post-Booker, while the

Guidelines should be applied in an advisory fashion, it was not necessary that the

drug amount be charged in the indictment or proven beyond a reasonable doubt to

                                          5
a jury. The government noted that the testimony from the first sentencing hearing

supported the conclusion that Murphy had been responsible for a larger drug

quantity than the quantity specified in the indictment. The following colloquy then

took place:

      [AUSA]: In reviewing the transcript of sentencing on November 17[,
      2004] . . . I believe [the Court] was concerned as to whether or not we
      had proof beyond a reasonable doubt of the amount of drugs. If we
      did, the Court indicated, then it would be five kilos of cocaine, 50
      grams of crack, and therefore, he would be a level 32. . . .

            That was not the case, as it would happen. The Supreme Court,
      I think, surprised all of us in its ruling and basically said that
      guidelines were just advisory. So we would ask the Court to still
      sentence him to what we believe is a reasonable sentence, the sentence
      previously imposed, which was the low end of the guideline range.

      THE COURT: Do you have any case law that says that post-
      Booker and Fanfan that there’s no need for a jury to determine the
      drug quantity?
      ....
      I don’t remember a case but I’m asking if you know.

      ....

      [DEFENSE COUNSEL]: No, I don’t, Judge, because I don’t know
      that there is any case that’s a remand case or anything, a sentencing,
      after January, [the date of Booker], that would have just been a pure
      Booker case as opposed to some type of Blakely/Booker hybrid. I
      don’t know of any.

      THE COURT: So there is no disagreement that he’s a [offense level]
      32-[criminal history category] V if it has to be the drug quantity he
      pled to?



                                         6
      [AUSA]: If the drug quantity had to be proved beyond a reasonable
      doubt or admitted by the defendant, than it would be a 32-V.

      THE COURT: Right. Do you agree with that --

      [DEFENSE COUNSEL]: Yes.

      ....

      THE COURT: . . . Well, I’m going to make the finding that in an
      instance such as this where the defendant pleads guilty assuming a
      certain level of drug quantity charged in the indictment, [that] is the
      guideline range the Court should impose. So I’m going to consider
      the guidelines range is 30-V [after a 2-level acceptance-of-
      responsibility reduction] which is 168 to 210. And then I’ll address
      arguments from both sides as to whether the guideline range is
      appropriate in this case.

(emphasis added). Thus, the court determined, the total adjusted offense level,

after a two-level reduction for acceptance of responsibility, was 30, and the

criminal history category was V, resulting in an applicable guideline range of 151

to 188 months’ imprisonment.

      In support of a low-end sentence of 151 months’ imprisonment, defense

counsel argued that Murphy’s co-conspirators had received sentences ranging from

37 to 210 months’ imprisonment, with the average sentence being 145 months.

Counsel also urged that a criminal history category V overstated the seriousness of

Murphy’s criminal history.




                                        7
      The government objected to the district court’s determination that it could

not make factual findings to support the offense-level enhancements it previously

imposed at the first sentencing hearing. The government also urged that Murphy

played a larger role in the conspiracy, thus supporting a higher sentence than other

co-conspirators.

      After hearing the parties’ arguments, providing Murphy the opportunity to

make a statement, and noting that it had considered the § 3553(a) factors, the court

imposed a high-end sentence of 188 months’ imprisonment and 5 years’ supervised

release, finding “no reason . . . considering [§] 3553 to depart from the guidelines

sentence” and stating that Murphy “should get the high end of the sentencing

guideline rather than the low end based upon his participation in this conspiracy.”

The court subsequently reiterated that it “[found] no reason to depart from the

sentence called for by application of the guidelines. This appeal followed.

      We have now made clear that Booker’s prohibition against extra-verdict

enhancements is dependent on the mandatory nature of the Guidelines. See United

States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005)(“Booker error exists when

the district court misapplies the Guidelines by considering them as binding as

opposed to advisory.”). “[B]oth majority opinions in Booker make clear that the

decisive factor that makes pre-Booker sentencing problematic is not extra-verdict



                                         8
enhancements but their use in a mandatory guidelines system.” United States v.

Rodriguez, 398 F.3d 1291, 1301 (11th Cir.), cert. denied,--- U.S. ----, 125 S. Ct.

2935; see also United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005)

(holding that if a district court applies the Guidelines as advisory, nothing in

Booker prohibits the district court from making, under a preponderance-of-the-

evidence standard, additional factual findings that go beyond a defendant’s

admission).

      Thus, a district court may find facts not found by a jury nor admitted by the

defendant, and use them in formulating a sentence, as long as the district court

properly applies advisory Guidelines.     Chau, 426 F.3d at 1324.       As we have

explained, “the district court’s factual findings for purposes of sentencing may be

based on, among other things, evidence heard during trial, undisputed statements in

the PSI, or evidence presented during the sentencing hearing.” United States v.

Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).

      In the instant case, the district court’s statements at the resentencing hearing

indicate that it erred as a matter of law in imposing sentence. The court said: “in

an instance such as this where the defendant pleads guilty assuming a certain level

of drug quantity charged in the indictment, [that] is the guideline range the Court

should impose.” Given the colloquy that took place before this conclusion, it is



                                          9
clear the district court thought that Booker required it to use the amount charged in

the indictment, or admitted by a defendant, in calculating the Guidelines range. To

the contrary, we have explained that post-Booker, sentencing courts can make

factual determinations using a preponderance-of-the-evidence standard, and

sentence a defendant on the basis of such factual findings, even if the defendant did

not admit to those facts. See Chau, 426 F.3d at 1323.

      Here, at the first sentencing hearing, for which a PSI was prepared and at

which time it heard the testimony of three cooperating co-conspirators, the district

court found as a fact that the instant offense involved 150 kilograms or more of

cocaine hydrochloride and 1.5 kilograms of cocaine base, but indicated it would

impose a lower sentence if the Guidelines were advisory.        At the resentencing

hearing, the district court took no new evidence, made no new factual findings, and

did not order an amended PSI, but determined that it could not use the findings it

had previously made to compute the drug quantity attributable to Murphy. This

was legal error and requires that we vacate and again remand Murphy’s case for

resentencing.   Cf. Polar, 369 F.3d at 1255 (noting that “factual findings for

purposes of sentencing may be based on, among other things, evidence heard

during trial, undisputed statements in the PSI, or evidence presented during the

sentencing hearing”).



                                         10
      On remand, the district court initially must correctly calculate the Guidelines

range and then may, if warranted, and in consideration of the 18 U.S.C. § 3553(a)

sentencing factors, “impose a more severe or more lenient sentence as long as it is

reasonable.” United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005); see

also United States v. Williams, 435 F.3d 1350, 1353-54 (11th Cir. 2006) (“After it

has made this calculation [the correctly calculated Guidelines range], the district

court may impose a more severe or more lenient sentence as long as the sentence is

reasonable.”).

      VACATED AND REMANDED.




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