                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               MAY 11, 2005
                               No. 04-10810                  THOMAS K. KAHN
                         ________________________                CLERK


                      D. C. Docket No. 01-00733-CR-2-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

STEVEN BERNARD PITTS,
BYRON SYLVESTER PITTS,


                                                         Defendants-Appellants.


                         ________________________

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

                                (May 11, 2005)

Before ANDERSON, HULL and RONEY, Circuit Judges.

PER CURIAM:

     This appeal is brought by two brothers, Byron Sylvester Pitts (“Byron”) and
Steven Bernard Pitts (“Steven”), who were convicted of two drug offenses. Byron

Pitts was also convicted of a firearms offense. The two defendants were convicted

in a single trial, and now appeal their convictions and sentences. After review and

oral argument, we affirm the defendants’ convictions, but vacate their sentences

and remand for resentencing under an advisory Sentencing Guidelines system

pursuant to Booker.

                            I. EVIDENCE AT TRIAL

      In order to analyze properly the defendants’ challenges to their convictions,

and the district court’s application of the Sentencing Guidelines, we recount the

evidence produced at the defendants’ joint trial.

      Byron and Steven Pitts are brothers from College Park, Georgia who

operated as drug brokers, arranging drug deals involving large amounts of cocaine.

On October 5, 2001, the Drug Enforcement Agency (“DEA”) conducted a reverse

sting operation with the help of confidential informant Eric Staples, a federal

prisoner convicted of drug trafficking and a long-time friend of Byron and Steven

Pitts. Byron was arrested during the sting operation. Steven fled the scene and

remained a fugitive for approximately one year.

      At trial, the government introduced a video tape of a conversation between

Staples and the defendants in which Staples informed the defendants that he was



                                          -2-
prepared to sell them a quantity of cocaine. Staples testified that as a result of the

video-taped conversation, Byron called Staples and placed an order for 100

kilograms of cocaine.

       The government introduced dozens of taped telephone calls between Staples

and the defendants discussing the details of the proposed drug transaction,

including the location of the exchange, the parties to be involved, and the price.

Staples testified that the defendants ultimately increased their order to 110

kilograms of cocaine.

       The government also introduced a statement made by Byron Pitts upon his

arrest detailing his involvement in the operation. According to the DEA agent who

interviewed Byron after his arrest, Byron admitted to participating in the drug deal

and identified the key participants. Byron also stated that the deal was to be a

“turn-around” in which the purchaser would sell the first shipment of cocaine

immediately, and then purchase an additional 110 kilograms of cocaine the

following day.1

       Eddie Myrick, another federal prisoner convicted of cocaine conspiracy,

testified that he was to be the purchaser of the cocaine in the deal set up by the


       1
        At a pre-trial hearing, Steven Pitts expressed concern that admitting the confession of
Byron Pitts, a non-testifying co-defendant, would implicate Steven’s rights under the Sixth
Amendment’s Confrontation Clause. In response to this concern, all mention of Steven Pitts was
omitted from the testimony regarding Byron’s confession.

                                              -3-
DEA and Staples. Myrick testified that on the day of the planned drug deal, he

transferred more than two million dollars into Steven Pitts’s gold Cadillac Escalade

and followed Steven to the location where the deal was to be consummated. At

some point, Myrick realized that the drug deal was “a set-up,” and he and Steven

fled the scene.

      The parties stipulated that, during the sting, the government seized two

million dollars in cash from the back of a gold Cadillac Escalade that was parked at

the scene. The DEA agent also testified that when Byron Pitts was arrested, police

found “a Glock handgun fixed with a laser sight on the trigger guard” in Byron’s

front pocket.

      Staples, the alleged supplier of the cocaine, also testified that he had a long

history of supplying the Pitts brothers with cocaine, beginning in March or April of

2001. The first transaction involved 10 kilograms. A few weeks later Staples sold

the defendants 70 kilograms of cocaine for one million dollars.

      Myrick also testified that he had purchased cocaine from the defendants on

numerous occasions. Myrick testified specifically to several transactions,

including one in which he purchased 50 or 70 kilograms, and another in which he

purchased approximately 30 kilograms.

      Todd Walker, another federal prisoner convicted of drug trafficking, testified



                                          -4-
that he sold cocaine to the defendants from 1998 to 2000 on approximately ten

occasions each. Walker stated that the most he ever sold to Byron or Steven in a

single transaction was one kilogram.

      The jury found both Byron and Steven Pitts guilty of (1) conspiracy to

possess with the intent to distribute at least five kilograms of cocaine, in violation

of 21 U.S.C. § 846, and (2) aiding and abetting each other to possess with intent to

distribute at least five kilograms of cocaine, in violation of 18 U.S.C. § 2 and 21

U.S.C. § 841(b)(1)(A)(ii). In addition, the jury found Byron Pitts guilty of

possessing a firearm during the commission of a drug trafficking offense, in

violation of 18 U.S.C. § 924(c)(1)(A)(i).

                                 II. SENTENCING

      Byron and Steven Pitts were sentenced separately. We next recount the

details of their sentencing hearings in turn.

A. Byron Pitts’s Sentencing

      During Byron Pitts’s sentencing hearing, the district court attributed to him

at least 150 kilograms of cocaine, yielding a base offense level of 38 under the

Sentencing Guidelines. The district court based its drug quantity finding on the

trial testimony regarding the amount of cocaine involved in the sting and other

previous transactions. The district court granted a two-level reduction for



                                            -5-
acceptance of responsibility under U.S.S.G. § 3E1.1 because Byron’s post-arrest

confession had led to the arrest of several other participants, including Eddie

Myrick. The district court denied Byron’s request for a minor-role reduction.

      With a total adjusted offense level of 36 and criminal history category of II,

the district court calculated a Guidelines range of 210-262 months’ imprisonment

for the drug counts, with an additional statutory mandatory minimum of 60

months’s imprisonment on the firearms charge. The district court sentenced Byron

Pitts to the low end of the Guidelines range, imposing 210 months’ imprisonment

on the two drug counts to be served concurrently, and the statutory mandatory

minimum 60 months’ imprisonment on the firearm count, to be served

consecutively.

B. Steven Pitts’s Sentencing

      During Steven Pitts’s sentencing hearing, the district court attributed to him

at least 150 kilograms of cocaine, yielding a base offense level of 38 under the

Guidelines. As in Byron’s sentencing, the district court based this drug quantity

finding on the trial testimony regarding the amount of cocaine involved in the sting

and previous transactions. In addition, the district court granted a two-level

increase under U.S.S.G. § 2D1.1(b)(1), concluding that it was reasonably

foreseeable to Steven that Byron would possess a firearm during the commission



                                          -6-
of the drug trafficking offense.2

       With a total adjusted offense level of 40 and criminal history category of III,

the district court calculated a Guidelines range of 360 months’ to life

imprisonment. The district court sentenced Steven Pitts to the low end of the

Guidelines range, imposing 360 months’ imprisonment on the two drug counts, to

be served concurrently.

                                       III. DISCUSSION

A. Conviction Issues

       On appeal, the defendants raise several challenges to their convictions. Both

defendants claim: (1) that they were incompetent to stand trial; (2) that the

evidence of prior unrelated drug transactions should not have been admitted at

trial; and (3) that the district court should have given their requested jury

instruction on withdrawal from a conspiracy.

       In addition, each defendant separately raises certain issues. Specifically,


       2
         U.S.S.G. § 2D1.1(b)(1) provides for the alteration of the “base offense level” based on
the specific characteristics of a drug trafficking offense. Specifically, it state, “[i]f a dangerous
weapon (including a firearm) was possessed, increase by 2 levels.”
        Where an increase in sentence pursuant to § 2D1.1(b)(1) is based on a co-conspirator's
possession of a firearm, this Court has determined that certain requirements must be met.
Specifically, we have held that the government must prove by a preponderance of the evidence
that “(1) the possessor of the firearm was a co-conspirator, (2) the possession was in furtherance
of the conspiracy, (3) the defendant was a member of the conspiracy at the time of possession,
and (4) the co-conspirator possession was reasonably foreseeable by the defendant.” United
States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999). As noted later, Steven Pitts does not
appeal the fact-finding that supports this two-level firearm enhancement under § 2D1.1(b)(1).

                                                 -7-
Steven Pitts argues: (1) that the admission of Byron’s confession violated his rights

under the Confrontation Clause of the Sixth Amendment; and (2) that the district

court improperly refused to instruct the jury that a buyer/seller relationship does

not constitute a conspiracy.

       On appeal, Byron Pitts argues: (1) that his post-arrest statement was

admitted in violation of 18 U.S.C. § 3501(c) because of the delay in bringing him

before a magistrate judge; and (2) that the district court abused its discretion in

denying Byron’s motion to sever the trial.

       After review and oral argument, we find that all of these issues are without

merit and warrant no further discussion.

B. Fact-Findings at Byron’s Sentencing

       On appeal, in addition to raising the Booker issues discussed below, Byron

Pitts challenges the fact-findings during his sentencing hearing.3 Specifically,

Byron Pitts challenges the district court’s findings (1) that his offenses involved at

least 150 kilograms of cocaine, and (2) that he was not entitled to a minor-role

reduction. We review these fact-findings for clear error. See, e.g., United States v.

De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc) (minor-role reduction);

United States v. Mertilus, 111 F.3d 870, 873 (11th Cir. 1997) (drug quantity).


       3
         On appeal, Steven Pitts does not challenge the district court’s fact-findings or Guidelines
calculations with respect to his sentence.

                                                -8-
       With regard to drug quantity, there was ample evidence to support the 150-

kilogram quantity of cocaine. For example, the extensive trial evidence included:

(1) a confession by Byron Pitts in which he stated that the 110-kilogram cocaine

purchase that he orchestrated was to include a second “turn around” involving

another 100 kilograms of cocaine; (2) corroborating testimony from two associates

of the Pitts brothers establishing a history of large-quantity drug transactions; and

(3) the seizure of more than two million dollars in cash (an amount consistent with

over 100 kilograms of cocaine).

       With regard to the minor-role reduction, the trial evidence showed that

Byron Pitts’s role in the offenses was substantial and crucial. For example, there

were dozens of taped phone conversations between Byron Pitts and the DEA’s

confidential informant discussing the details of the drug transaction. Byron set the

price and determined where and when the drug transfer was to take place. Also, it

was Byron who originally ordered the 100 kilograms of cocaine. The testimony

relating to prior transactions also showed that Byron Pitts operated as at least an

equal partner with his brother. Taken together, the evidence showed that Byron’s

role in the offenses was anything but minor. At a minimum, Byron failed to

establish that his role was minor.4


       4
       As to the minor-role reduction, Byron Pitts has the burden of proving his minor role by a
preponderance of the evidence. United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002).

                                              -9-
       Accordingly, based upon all the evidence in this case, the district court did

not clearly err in making its factual determinations as to either the drug quantity or

the minor-role reduction.

C. Booker Issues

       In their initial briefs on appeal, both defendants argued that their sentences

were increased based upon facts not found by the jury in violation of Blakely v.

Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). Since the filing of the briefs on

appeal, the Supreme Court extended Blakely to the Federal Sentencing Guidelines

in United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). Under Blakely

(now Booker), the defendants contend that the judicial fact-findings underlying

their sentence enhancements violated the Sixth Amendment.

       Because the defendants did not raise this Blakely (now Booker) issue in the

district court, we review only for plain error. United States v. Rodriguez, 398 F.3d

1291, 1298 (11th Cir. 2005), petition for cert. filed 73 U.S.L.W. 3531 (U.S. Feb

23, 2005) (No. 04-1148). “An appellate court may not correct an error the

defendant failed to raise in the district court unless there is: ‘(1) error, (2) that is

plain, and (3) that affects substantial rights.’” Id. (quoting United States v. Cotton,

535 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002)). If these three condition are met,

then we have discretion to reverse a forfeited error, “but only if (4) the error



                                            -10-
seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” Id. (quoting Cotton, 535 U.S. at 631, 122 S. Ct. at 1785).

       It is undisputed that both defendants were given sentences based upon extra-

verdict enhancements under the Guidelines.5 It is further undisputed that, under

Booker, these extra-verdict enhancements imposed under a mandatory guidelines

system violated the defendants’ Sixth Amendment rights. See Booker, 125 S. Ct.

at 749-56; Rodriguez, 398 F.3d at 1301 (Booker error is “not the use of extra-

verdict enhancements . . . . [Rather,] [t]he constitutional error is the use of extra-

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

judge.”) (emphasis added).

       This Court has already determined that this type of Booker error meets the

first two prongs of plain-error review because it is (1) error, (2) that is plain.

United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005); Rodriguez,

398 F.3d 1298-99. We thus move to the third prong of plain-error analysis.

       Under the third prong, Byron and Steven Pitts bear the exacting burden of

showing that the Booker errors in their sentencing “affect[ed] [their] substantial

       5
         The jury returned a verdict convicting the defendants of drug crimes involving at least
five kilograms of cocaine. The defendants were sentenced based upon judicial fact-findings that
their drug crimes involved more than 150 kilograms of cocaine. In addition, while Byron Pitts
was convicted of possessing a firearm during a drug trafficking offense, Steven Pitts was not
charged with a firearms offense. Rather, Steven Pitts’s sentence was enhanced by the district
court based upon a determination that Byron’s use of a firearm was foreseeable to Steven.


                                              -11-
rights.” Shelton, 400 F.3d at 1331. The defendants’ heavy burden in this regard

“is to show that the error actually did make a difference.” Id. at 1332 (quotation

marks and citation omitted). Specifically, in post-Booker sentencing cases, the

third prong is met only if the defendant shows “a reasonable probability of a

different result if the guidelines had been applied in an advisory instead of binding

fashion by the sentencing judge in this case.” Rodriguez, 398 F.3d at 1301. A

“reasonable probability of a different result” is a probability “sufficient to

undermine confidence in the outcome.” Id. at 1299.

       In this case, as in Shelton, we conclude that both Byron and Steven Pitts

have carried this exacting burden. As to Byron Pitts, the district court sentenced

Byron to 210 months, the low end of the Guidelines range. More importantly, here

the district court also indicated its dissatisfaction with the sentence it was required

to impose under the Guidelines. At one point during Byron Pitts’s sentencing

hearing, the district court stated that it felt constrained by the letter of the

Guidelines despite its desire to impose a lesser sentence. Specifically, the court

stated, “Frankly, I’d like to help you out because I don’t want to impose the kind of

sentence I’ve got to impose today . . . .”

       In addition, when calculating Byron’s criminal history category, the district

court noted that it was “troubled by the fact that [one of the misdemeanor



                                             -12-
convictions in Byron’s criminal history] wasn’t counseled.” However, the district

court again noted that it was constrained by the Guidelines on this point, stating

that “[t]he guidelines say that even uncounseled misdemeanors should be counted,

so based on that I’m going to rule against you . . . .”

      As was the case in Shelton, all of these comments, and a fair reading of the

sentencing transcript as a whole, “convince us that there is a reasonable probability

the district court would have imposed a lesser sentence in [this] case if it had not

felt bound by the Guidelines.” Shelton, 400 F. 3d at 1332-33.

      Likewise, as to Steven Pitts, the district court sentenced Steven to 360

months, the low end of the Guidelines range. Also, during Steven Pitts’s

sentencing hearing, the district court expressed dissatisfaction with the sentence it

was bound to impose. For example, although the district court ultimately

sentenced Steven at the lowest possible end of his Guidelines range, the district

court stated that the sentence “was very harsh.” The district court also specifically

thanked Steven’s attorney for attempting to have the sentence reduced, stating that

“you’ve given me every opportunity to not do what I think the law requires me to

do and I thank you for that.”

      Again, all of these comments, and a fair reading of the sentencing transcript

as a whole, “convince us that there is a reasonable probability the district court



                                          -13-
would have imposed a lesser sentence in [this] case if it had not felt bound by the

Guidelines.” Id.

       Finally, the fourth prong of plain-error analysis requires us to consider

whether the sentencing errors in this case “seriously affected the fairness, integrity

or public reputation of judicial proceedings.” Id. at 1333 (quotation marks,

punctuation, and citation omitted). Under the facts and circumstances of this case,

we also conclude that the fourth prong is established and that an exercise of our

discretion is warranted.6

                                     IV. CONCLUSION

       For all of the above reasons, we AFFIRM all the convictions of defendant

Byron Pitts and defendant Steven Pitts. We VACATE their sentences and

REMAND to the district court so that each defendant may be resentenced in a

manner consistent with Booker.


       6
         We note that Byron Pitts’s 60-month sentence imposed for carrying a firearm during the
commission of a drug trafficking offense constitutes the statutory mandatory minimum for that
offense. See 18 U.S.C. § 924 (c)(1)(A)(i) (stating that any person violating the statute “shall, in
addition to the punishment provided for such . . . drug trafficking crime . . . be sentenced to a
term of imprisonment of not less than 5 years”). On remand, the district court will remain
constrained by the statutory sentencing provision. Therefore, the only portion of Byron Pitts’s
sentence that could be affected by consulting the § 3553(a) factors is the 210-month sentence
Pitts received for his drug convictions.
        We also note, as we did in Shelton, that we do not know what sentence the district court
might impose on either defendant after consulting the factors in § 3553(a). We therefore cannot
determine at this time whether a particular sentence below the Guidelines range will be
reasonable in this case, and do not express any opinion on the reasonableness of such a sentence.
See Shelton, 400 F.3d at 1333 n.11.

                                               -14-
       We note that in this case, the district court correctly determined the proper

Guidelines range for both Byron’s and Steven’s convictions. On remand, the

district court is required to resentence each defendant under an advisory Guidelines

regime, and shall consider the relevant Guidelines range for each defendant and

“other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).”

Booker, 125 S. Ct. at 757.7

       AFFIRMED in part; VACATED and REMANDED in part.




       7
        We do not mean to imply that on remand the district court must impose a lesser
sentence. On remand, the district court may impose the same sentence. Rather, we merely hold
that Byron and Steven Pitts have each shown a reasonable probability that the district court
would have imposed a lesser sentence under an advisory Guidelines regime.

                                            -15-
