                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JULY 15, 2005
                               No. 04-13978                 THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                D. C. Docket No. 04-00008-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                    versus

JEREMY GIOVANARDI,

                                                           Defendant-Appellant.


                         ________________________

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

                                (July 15, 2005)

Before BIRCH, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Jeremy Giovanardi appeals his 18-month sentence for his violation of 21
U.S.C. section 846 by possessing with the intent to distribute cocaine. On appeal,

Giovanardi argues, that the district court committed both constitutional and

statutory errors, under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738

(2005), when it sentenced Giovanardi under a mandatory sentencing regime based

on a drug quantity that was not found by a jury. Because the district court did not

commit a constitutional error and its statutory error was harmless, we affirm.

          Giovanardi was indicted for possessing with intent to distribute “a detectable

amount” of cocaine. Giovanardi sold to a government informant a total of 171.1

grams of cocaine–54.6 grams of cocaine on one occasion and 116.5 grams of

cocaine on another occasion. Before trial, the government sent Giovanardi a

“Notice of Penalties, Elements, and Facts” that alleged a drug quantity of

approximately 171.1 grams purchased by the informant. Giovanardi did not object

to that statement either before or during the hearing at which Giovanardi pleaded

guilty.

          At his sentencing hearing, Giovanardi objected on the ground that the

indictment charged him only with possession of “a detectable amount” of cocaine

and “a detectable amount” was the maximum drug quantity that the district court

could employ in sentencing him. The district court overruled that objection and

sentenced Giovanardi to 18 months’ imprisonment, at the high end of his Guideline



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range, because Giovanardi tested positive for cocaine use while out on bond.

      Giovanardi timely raised his objection, under Blakely v. Washington, 542

U.S. ___, 124 S. Ct. 2531 (2004), at his sentencing hearing. “Where there is a

timely objection, we review the defendant’s Booker claim in order to determine

whether the error was harmless.” United States v. Mathenia, No. 04-15250, ___

F.3d ___, 2005 WL 1201455, at *2 (11th Cir. May 23, 2005). As this Court

discussed in Mathenia, “[t]here are two harmless error standards. One of them

applies to Booker constitutional errors, the other to Booker statutory errors.” Id.

The standard for constitutional error requires the government to show “beyond a

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

sentence.” Id. The standard for statutory error requires us to determine whether

the error either did not affect the sentence or only had a very slight effect. Id.

(quoting United States v. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir. 2004)).

The standard of review for statutory error “is not easy for the government to meet.

It is as difficult for the government to meet that standard as it is for a defendant to

meet the third-prong prejudice standard for plain error review.” Id.

      Giovanardi argues that the district court erroneously calculated his sentence

based a drug quantity that was not charged in the indictment or found by a jury.

Giovanardi contends that his 18-month sentence, which was based on a drug



                                            3
quantity of 171.1 grams of cocaine, is less advantageous than the sentence of zero

to six months to which he was entitled. Giovanardi also argues that the district

court committed statutory error, under Booker, when it sentenced him under the

Sentencing Guidelines as a mandatory, not advisory, system.

        Giovanardi’s constitutional argument fails because he did not object to the

factual statement of the government that included the drug quantity for which he

was sentenced. Before the Supreme Court decided Booker, we stated that “a

stipulation to a specific drug quantity–whether as part of a written plea agreement,

part of a jury trial, or at sentencing–serve[s] as the equivalent of a jury finding on

that issue, since the stipulation takes the issue away from the jury.” United States

v. Sanchez, 269 F.3d 1250, 1271 (11th Cir. 2001). Booker did not change that

rule.

        After Booker, we held that a sentence imposed based on facts that a

defendant admitted was not constitutional error. United States v. Shelton, 400 F.3d

1325, 1330 (11th Cir. 2005). Giovanardi did not object to the factual statement of

the government, which included the allegation that Giovanardi possessed with the

intent to distribute 171.1 grams of cocaine. The district court did not commit

constitutional error when it sentenced Giovanardi based on that fact.

        Giovanardi’s statutory argument also fails. After Giovanardi was sentenced



                                            4
in the district court, the Supreme Court determined “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). A statutory error was

committed when the district court sentenced Giovanardi under a mandatory

guidelines regime, but the error was harmless.

      We can say with fair assurance that the statutory error had no effect on

Giovanardi’s sentence. In United States v. Gallegos-Aguero, the defendant was

sentenced “to the highest sentence available under the applicable guideline range,

and [the district judge] considered sentencing Gallegos-Aguero . . . the maximum

allowable under the statute of conviction.” No. 04-14242, ___ F.3d ___, 2005 WL

1160635, at *2 (11th Cir. May 18, 2005). The statutory error was harmless

because the defendant was sentenced on the high end of the Guideline range, id.,

and, as the Tenth Circuit stated, the district judge “exercised his limited discretion

under the pre-Booker system to give [the defendant] the highest permissible

sentence.” United States v. Riccardi, 405 F.3d 852, 876 (10th Cir. 2005).

      The same facts are present here; the district court imposed the maximum

sentence available under the mandatory Guidelines system and adequately



                                           5
explained its rationale for imposing that sentence. When asked by the federal

public defender to impose a lenient sentence, the district court stated that the

“request of a year and a day would normally seem like an appropriate sentence in

this case. I’m not going to accept it in this case. I’m going to impose the

maximum sentence under [the G]uidelines because of the drugs while on bond.”

The district court further explained its rationale: “[Mr. Giovanardi, y]ou need to

realize for a number of factors you have to stop using drugs. You have a family

and either this is the beginning of your criminal activity or the end of it. Your

attorney says it’s the end. I hope he’s right.”

      The government has met its high burden. The statutory error was harmless

because the district court sentenced Giovanardi at the high end of the Guideline

range because of his positive test for cocaine while on bond awaiting trial. The use

of advisory Guidelines would not have changed that fact.

      We conclude that the district court did not commit Booker constitutional

error. We also conclude that, although the district court committed statutory error

when it sentenced Giovanardi under a mandatory system, that error was harmless.

      AFFIRMED.




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