                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT         FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 04-15353                   August 1, 2005
                            Non-Argument Calendar            THOMAS K. KAHN
                                                                 CLERK
                          ________________________

                       D.C. Docket No. 04-00011-CR-01-1

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

      versus

RALEIGH CRAWFORD KELLEY, IV,
                                                   Defendant-Appellant.

                         __________________________

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

                                (August 1, 2005)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

      Raleigh Crawford Kelley, IV, appeals his 108-month sentence for

possession of 5 grams or more of cocaine base (crack), in violation of 21 U.S.C.

§ 844(a). This indictment stemmed from an incident at Fort Gordon, Georgia, on
Sunday, August 3, 2003, when Kelley and his passenger, Mazo Ford Jones,

attempted to enter the military base to buy beer. Because they did not have a

proper identification sticker, military police (“MP”) pulled them over into a search

area. An MP thought that he detected an odor of marijuana in the car, so he

conducted a search of the vehicle. During the search, the MP found several

hundred rounds of different caliber ammunition in the vehicle’s trunk. The MP

then asked Kelley whether there was a weapon in the vehicle. Although Kelley

did not immediately respond that there was a weapon in the car, he eventually told

the MP that Jones had a firearm under the passenger seat. The MP then searched

the car and found the firearm under the seat and the firearm’s magazine in the

glove box. The MP subsequently conducted a complete search of the vehicle and

found, in the trunk, a bag that belonged to Kelley. In the bag was a tennis shoe

that contained approximately 28 grams of crack cocaine. Kelley subsequently

pled guilty to the above charge.

      In addition to the crack cocaine possession charge, in January 1998, Kelley

was convicted, in relevant part, of carrying a concealed weapon. In July 1998,

Kelly was convicted of (1) possession of a firearm by a convicted felon, (2)

possession of a firearm after being adjudicated delinquent, and (3) possession of a

firearm while simultaneously possessing cocaine.

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        At sentencing, the district court imposed a two-level enhancement, under

U.S.S.G. § 2D1.1(b)(1), for possessing a dangerous weapon. In so doing, the

court stated that, given the fact that (1) Kelley knew that the gun was in the

vehicle, (2) the gun and its magazine were in close proximity to one another, (3)

there was a significant amount of cocaine in the trunk of the vehicle, (4) Kelley’s

previous firearm convictions demonstrated his familiarity with firearms and that

he has them around when he possesses a controlled substance, and (5) there was a

significant amount of ammunition in the trunk of his car, it was clearly probable

that the gun related to his possession of the cocaine.

        The court subsequently sentenced Kelley to 108 months imprisonment, the

top of his Sentencing Guideline range, stating that it was troubled with Kelley’s

performance while on pretrial release, his lack of candor with the pretrial services

officer, and his “attempt to manipulate his lawyer, the court, the magistrate judge,

the probation officers and everybody else around him.” The court went on to state

that,

        Mr. Kelley is a repeat offender of offenses involving firearms and
        drugs. He is too clever. He is a manipulative person and the prospect
        of his having advanced computer expertise is one that I find
        somewhat chilling. I can’t tell him what to learn or what not to learn,
        but I hope any potential employers in the future will look at his
        background very carefully if that is the kind of work he is going to be
        involved in.

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            In short I am taking into account . . . everything else I have
      come to know about Mr. Raleigh Kelley, IV, and I don’t trust what he
      says. I am doubtful about his true intentions at all times. While I
      have given him acceptance of responsibility I have done so for
      reasons which do not [] amount to bestowing a merit badge on him.

      On appeal, Kelley contends that the district court erred in (1) attributing to

him the two-level enhancement for possessing a dangerous weapon, and

(2) sentencing him pursuant to a mandatory guidelines scheme, in violation of

United States v. Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).

I.    Firearm Enhancement

      On appeal, Kelley asserts that the district court erred in assessing a two-

level firearm enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), for possessing a

dangerous firearm because the person who actually possessed the firearm had no

knowledge that Kelley had cocaine in his suitcase. Thus, it was clearly

improbable that the firearm was connected to his drug offense.

      We review for clear error the district court’s findings of fact when it

enhances a defendant’s sentence in cases involving U.S.S.G. § 2D1.1(b)(1), and

review the application of the sentencing guidelines de novo. United States v.

Gallo, 195 F.3d 1278, 1280 (11th Cir. 1999).

      Under the guidelines, a defendant should receive a two-level enhancement if

he possessed a firearm. U.S.S.G. § 2D1.1(b)(1). The commentary to § 2D1.1

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states that “[t]he adjustment should be applied if the [firearm] was present, unless

it is clearly improbable that the weapon was connected with the offense.”

U.S.S.G. § 2D1.1(b)(1), cmt. n.3. The government has the burden of proving that

“the firearm was present at the site of the charged conduct.” United States v.

Hall, 46 F.3d 62, 63 (11th Cir. 1995). Then the burden shifts to the defendant to

demonstrate that “a connection between the firearm and the offense is clearly

improbable.” Id.

      In the case at bar, although Kelley claims that the firearm could not be

connected to his drug offense because Jones, the owner of the gun, was unaware of

the crack cocaine in the trunk, Kelley’s arguments are misguided. Kelley admitted

that he was aware that he had approximately 28 grams of crack cocaine and

several hundred rounds of ammunition in the trunk of his vehicle. He also knew

that there was a gun under the passenger seat, only a few feet away from him, and

the gun’s magazine was located in the glove box, only a few feet from the gun.

Since 28 grams of crack cocaine is consistent with a distribution amount, and not

merely a personal amount, it further supports the district court’s decision that it

was not clearly improbable that the firearm was connected to Kelley’s drug

offense. See United States v. Samiento, 744 f.2d 755, 761 (“Intent to distribute

may be inferred form the amount of cocaine involved.”); United States v. Wash,

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231 F.3d 366, 371 (7th Cir. 2000) (noting that 5.4 grams of crack cocaine is a

distribution amount). Given Kelley’s knowledge of the drugs in his trunk, the

amount of drugs in the trunk, the location of the firearm, and the location of the

gun’s magazine, in addition to Kelley’s previous controlled substance offense that

involved the use of a gun, it was not clearly improbable that the firearm was

connected to Kelley’s drug offense. See Hall, 46 F.3d at 63. Accordingly, the

district court did not clearly err in applying the enhancement.

II.   Booker Claim

      Kelley further contends that the district court erred, under Booker, in

sentencing him under a mandatory guidelines system. In Blakely v. Washington,

the Supreme Court held that, under the state of Washington’s mandatory

sentencing guidelines system, the imposition of a sentencing enhancement based

upon facts neither admitted by the defendant nor found by the jury violated the

defendant’s Sixth Amendment right to a jury trial. Blakely, 542 U.S. 296, __, 124

S. Ct. 2531, 2534-2538, 159 L. Ed. 2d 403 (2004). In Booker, the Supreme Court

extended this holding to the federal Sentencing Guidelines. Booker, 543 U.S. at

___, 125 S. Ct. at 755. Based on the Supreme Court’s holding, we have stated that

there could be two Booker errors: (1) a Sixth Amendment error – the error of

imposing a sentencing enhancement based on judicial findings that go beyond the

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facts admitted by the defendant or found by the jury, and (2) a statutory error – the

error of being sentenced under a mandatory guidelines system. United States v.

Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

      Because Kelley’s sentence was enhanced under a mandatory guidelines

system based on facts found by the judge and not admitted by him, Kelley’s right

to a jury trial was violated. See United States v. Paz, 405 F.3d 946, 948 (11th

Cir. 2005). Kelley raised an objection to the enhancement in the district court;

thus, we review the sentence de novo. Id. However, if this error is harmless, we

must disregard it. Id. “To find harmless error, we must determine that the error

did not affect the substantial rights of the parties.” Id. (quotation omitted). Where

“the error is harmless beyond a reasonable doubt[,]” it must be disregarded. Id.

(quotation omitted).

      When a defendant raises an objection to the mandatory nature of the

guidelines, we review for harmless error. United States v. Mathenia, 409 F.3d

1289, 1291(11th Cir. 2005). While this is a less stringent harmless error standard

than that applied to a constitutional Booker error, a statutory Booker error “is

harmless if, viewing the proceedings in their entirety, a court determines that the

error did not affect the [sentence], or had but very slight effect. If one can say

with fair assurance . . . that the [sentence] was not substantially swayed by the

                                           7
error, the [sentence] is due to be affirmed even though there was error.” Id. at

1292 (internal quotation omitted). In the present case, there was a non-

constitutional Booker error because the district court sentenced Kelley under a

mandatory guidelines system. See Shelton, 400 F.3d at 1330-31. For the

foregoing reasons, we find both the statutory and constitutional Booker errors

harmless.

      Here, the record demonstrates that the court’s statutory error did not affect,

or had but a slight effect, on Kelley’s sentence. See United States v. Gallegos-

Aguero, 409 F.3d 1274, 1277 (11th Cir. 2005) (finding sentencing the defendant

under a mandatory guidelines scheme was harmless because (1) he was sentenced

to the top of the guideline range, and (2) the district court considered sentencing

the defendant to the maximum allowable under the statute of conviction).

Moreover, with respect to the enhancement and constitutional error, “it is clear

beyond a reasonable doubt that the [constitutional] error complained of did not

contribute to the [sentence] obtained.” See Paz, 405 F.3d at 948 (quotation

omitted). Specifically, when it sentenced Kelley, the district court stated that

Kelley was a “manipulative person” and his knowledge of computers was

“chilling.” The court further stated that it hoped that Kelley’s future employers

would look “very carefully” at Kelley’s background. Furthermore, the court stated

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that, although it gave him the acceptance of responsibility adjustment, it did not

trust what Kelley said, and doubted his true intentions.

      This language from the court, in addition to the court’s sentencing Kelley to

the top of the guideline range, suggests that Kelley’s sentence was not

“substantially swayed by the error,” because it indicates that the district court was

afraid that, when Kelley was released back into society, he would continue to

commit controlled substance and firearm offenses, or that his knowledge of

computers would lead to other criminal charges. Additionally, the court’s

comments also suggest that, if the guidelines were advisory instead of mandatory,

the court would have given Kelley a higher sentence than what the guidelines

required. The court’s comments further indicate that “it is clear beyond a

reasonable doubt” that the constitutional error of enhancing the sentence based

upon facts neither admitted nor proven to a jury did not contribute to the sentence.

Therefore, the errors by the district court in sentencing Kelley under a mandatory

guidelines system and enhancing his sentence were harmless.

      For the foregoing reasons, we affirm Kelley’s sentence.

      AFFIRMED.




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