FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 15, 2005

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11372

Non-Argument Calendar

________________________

D. C. Docket No. 04-00010-CR-9-6

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JERMAINE MCKEEVER, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(September 15, 2005)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

Jermaine McKeever appeals his 175-month sentence, imposed after he pled

guilty to distributing approximately 12 grams of cocaine powder, in violation of 21

U.S.C. § 841(a). On appeal, McKeever argues that the district court violated his

Sixth Amendment rights by enhancing his sentence based on a quantity of drugs
2

not admitted by him or established beyond a reasonable doubt to a jury, in

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

621 (2005), which was decided prior to McKeever’s sentencing hearing. After

careful review of the parties’ briefs and the record, with particular attention to the

transcript of the sentencing hearing, we affirm.

Because McKeever preserved his Booker claim in the district court, our

review is de novo, but we will reverse and remand only for harmful error. See

United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). Preserved constitutional

and statutory errors under Booker are reviewed for harmless error. See United

States v. Mathenia, 409 F.3d 1289, 1291-93 (11th Cir. 2005). Constitutional error

is “harmless” when the government can show beyond a reasonable doubt that the

error did not contribute to the defendant’s ultimate sentence. Id. at 1291. We

review statutory error under a less demanding test: whether a review of the

proceedings, as a whole, shows that the error either did not affect the sentence or

had only a slight effect. Id. at 1291-92. “If one can say with fair assurance that the

sentence was not substantially swayed by the error, the sentence is due to be

affirmed even though there was error.” Id. at 1292 (internal marks omitted). The

government has the burden of proof under both standards. Id.

The facts relevant to McKeever’s sentencing claim are these. McKeever and
3

nine codefendants were charged in a 14-count indictment related to a drug

conspiracy. Of the fourteen counts, McKeever was indicted in: (1) Count 1, prior

to and from April 2001 to the present, possessing with intent to distribute in excess

of 50 grams of cocaine base, in violation of 21 U.S.C. § 846; (2) Count 6, on April

17, 2003, distributing 86 grams of cocaine base, in violation of 21 U.S.C. § 841(a);

(3) Count 12, on January 8, 2003, distributing 55 grams of cocaine hydrochloride,

in violation of 21 U.S.C. § 841(a); and (4) Count 13, on January 8, 2003,

distributing 12 grams of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a).

Pursuant to a written plea agreement, McKeever pled guilty to Count 13, which

involved 12 grams of cocaine hydrochloride, and the government dismissed the

remaining counts. McKeever proceeded to sentencing.

According to the presentence investigation report (“PSI”), in April 2001,

special agents of the Drug Enforcement Administration (DEA) began investigating

five of the nine defendants as significant distributors of cocaine powder and crack

cocaine. On January 8, 2003, DEA special agents met with a confidential

informant (“CI”) as part of an undercover operation specifically investigating

McKeever. On that date, the CI contacted McKeever and requested to purchase

cocaine. McKeever subsequently met the CI and undercover Special Agent Vinson

Jenkins. After traveling to several different locations, McKeever provided the CI
4

first with 55.6 grams of cocaine powder, in exchange for $2,000, and then with an

additional 12.4 grams of cocaine powder, in exchange for $600. 

On April 17, 2003, the CI and Special Agent Jenkins again met with

McKeever to purchase some crack cocaine. This time McKeever was accompanied

by a codefendant who informed the CI and Agent Jenkins that someone was

“cooking” and that the product should be ready in about thirty minutes. While they

were waiting, McKeever stated that “I’m, I’m only doing it, cause I, cause I know

you” and then stated to the codefendant that “I got to run here for a minute man.

You gone take care of them?” to which the codefendant responded affirmatively.

The codefendant gave the CI his phone number, and the CI and Agent Jenkins left

the location. Several hours later, the CI contacted the codefendant by phone, and

the codefendant subsequently provided the CI with 86.5 grams of crack cocaine in

exchange for $2,250. 

The PSI attributed to McKeever the 55.6 grams and 12.4 grams of cocaine

powder sold on January 8, 2003, and the 86.5 grams of crack cocaine sold by

McKeever and the codefendant on April 17, 2003. The PSI stated that according to

the drug equivalency tables found at U.S.S.G. § 2D1.1, one gram of cocaine

powder is the equivalent of 200 grams of marijuana and one gram of crack cocaine

is the equivalent of 20 kilograms of marijuana, so that, when the amounts sold on
5

January 8, 2003 and April 17, 2003 were converted and added together, McKeever

was attributed with the equivalent of 1,743.6 kilograms of marijuana.

The PSI calculated a base offense level of 32, based on a drug offense

involving at least 1,000 kilograms but less than 3,000 kilograms of marijuana, see

U.S.S.G. § 2D1.1(c)(4), and recommended a 3-level adjustment for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(a)(b). Based on an adjusted offense

level of 29 and a criminal history category III, the Guidelines imprisonment range

was 108 to 135 months’ imprisonment. McKeever also faced a statutory maximum

240-month term of imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(C). 

McKeever objected to the PSI, citing Blakely v. Washington, 542 U.S. 296,

124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and arguing that the base offense level

was calculated erroneously by including the drug amounts attributable to Counts 1,

6 and 12, all of which the government had agreed to dismiss in exchange for his

guilty plea on Count 13. The probation officer responded that McKeever should

be attributed with the quantity of cocaine charged in those counts pursuant to the

relevant conduct provisions of U.S.S.G. § 1B1.3, and that Booker, which only

made the Guidelines advisory, still permitted the court to impose a sentence at or

below the statutory maximum for the offense. 

McKeever also objected to the factual statement in the PSI that, during the
6

April 17, 2003 sale of crack cocaine, he spoke to the CI. McKeever maintained

that only his codefendant spoke with the CI. McKeever also argued that he was

not present at the time the illegal drugs were sold between his codefendant and the

CI and no evidence existed that he was even aware that the subsequent sale

occurred or that he profited from it. The probation officer responded that, pursuant

to the relevant conduct provisions of U.S.S.G. § 1B1.3, Booker, and considering

this Court’s decisions in United States v. Rodriguez, 398 F.3d 1291 (11th Cir.),

cert. denied, 125 S. Ct. 2935 (2005), and United States v. Duncan, 400 F.3d 1297,

1304 (11th Cir. 2005), there was no requirement that McKeever profit from or be

present during a drug transaction to be attributed with the quantity of drugs sold

during the transaction. 

At the sentencing hearing, the district court overruled McKeever’s

objections and adopted the PSI’s recommendations as to relevant conduct, after

consideration of Booker and this Court’s decisions in Rodriguez and Duncan. In

reviewing the Guidelines range of 108 to 135 months’ imprisonment, the court

noted that the maximum statutory penalty for Count 13 was 240 months’

imprisonment. See 21 U.S.C. § 841(b)(1)(C). The court rejected McKeever’s

Booker objections, noting:

I know the misgivings that [McKeever] has, that [he] pled guilty to

something. But when a [c]ourt is sentencing, you look at the person
7

and somewhat take into consideration – not always – the totality of the

circumstances. But that has been really refined in relevant conduct.

Obviously, you cannot take into consideration things that are not

related. He is not being charged with bank robbery. That would be

completely irrelevant, or treason, or a million other things. But I think

it is fair for the Court to consider when you examine the transaction,

“I’ve got to run out of here for a minute, man. You gone take [care]

of them.” So, I accept the probation officer’s position regarding that.

Later during the hearing, when McKeever testified about his participation in the

charged crimes, the court interrupted him and said, “Mr. McKeever, I want you to

say anything you wish. But I want to tell you, you’ve been convicted one time of

perjury. . . . I value the truth. I sit here every day and I listen. I think you are

committing perjury now. Now, I’m telling you what I believe. You are walking

over the line when you start lying to me. You can’t soft soap your way by me. I

have heard it all.” 

Prior to imposing sentence, the district court indicated that it had read

Booker, as well as our decisions in Duncan and Rodriguez. Also before

announcing McKeever’s sentence, the court noted:

[B]etween December 25, 2000 and April 8, 2001, he [McKeever] was

issued 15 citations for violations of a local beer and wine ordinance.

And he has a conviction of perjury, which I previously noted. He has

fathered ten children from ten different women. I’m not going to try

to particular[ly] balance out at this time the good and the bad, based

upon his criminal conduct, his misleading the Court here today, his

complete irresponsibility with bringing children into the world and not

supporting them.
Because it is easier for the government to establish the harmlessness of Booker

1

non-constitutional error than the harmlessness of Booker constitutional error, see United States v.

Robles, 408 F.3d 1324, 1327 (11th Cir. 2005), when a district court's constitutional Booker error is

harmless, any non-constitutional Booker error also will be harmless. Based on our conclusion that

Booker constitutional error, if any, in this case was harmless beyond a reasonable doubt, we need

not, and do not, address Booker non-constitutional error.

8

The court then imposed a 175-month term of imprisonment, to be followed by five

years of supervised release, observing that the 175-month term was the same

sentence that one of McKeever’s codefendants received. This appeal followed.

We have enumerated two types of Booker error: (1) a Sixth Amendment

error -- the error of imposing a sentencing enhancement, under a mandatory

regime, based on judicial findings that go beyond the 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, 1330-1331 (11th Cir. 2005).1

In Rodriguez, we reviewed a claim of Booker constitutional error that a

defendant’s sentence violated his Sixth Amendment rights because it was based on

a judge’s finding of facts that were neither charged in an indictment nor proven to

a jury. Id. at 1297. We noted that the use of “extra-verdict enhancements,” such as

relevant conduct, “remains a constitutional part of guidelines sentencing in the

post-Booker era.” Rodriguez, 398 F.3d at 1301; see also United States v. Duncan,

400 F.3d 1297, 1304 (11th Cir. 2005) (noting “[o]ur Circuit’s precedent uniformly
9

states, ‘[r]elevant conduct of which a defendant was acquitted nonetheless may be

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

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

evidence.”” (citation omitted)). As we observed in Duncan, sentencing judges can

continue to consider relevant acquitted conduct when applying the Guidelines in an

advisory manner, “[f]or when a trial judge exercises his discretion to select a

specific sentence within a defined range, the defendant has no right to a jury

determination of the facts that the judge deems relevant.” 400 F.3d at 1304-1305.

Here, the district court cited our decisions in Rodriguez and Duncan and did

not enhance McKeever’s sentence based on “extra-verdict enhancements” in a

mandatory system. The court explained at length its reasoning for giving

McKeever a sentence within the statutory range but exceeding the Guidelines

range. Our own thorough review of the sentencing transcript indicates that, in

addition to consideration of the Guidelines range, the court took into account many

of the factors enumerated in 18 U.S.C. § 3553(a) when sentencing McKeever, as

directed by Booker. See 125 S. Ct. at 764; 18 U.S.C. § 3553(a) (“The court . . .

shall consider . . .(1) the nature and circumstances of the offense and the history

and characteristics of the defendant; . . . (3) the kinds of sentences available; (4) the

kinds of sentence and the sentencing range established for– (A) the applicable
Cf. Robles, 408 F.3d at 1328 (stating that even if the defendant “was sentenced post-Booker

2

and we were reviewing for reasonableness, we would not expect the district court in every case to

conduct an accounting of every § 3553(a) factor . . . and expound upon how each factor played a role

in its sentencing decision”). After the district court has accurately calculated the Guideline range,

it “may impose a more severe or more lenient sentence” that we review for reasonableness. United

States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). Although McKeever does not address

the reasonableness of his sentence if we hold, as we do, that there was no reversible Booker error,

in the light of the factors outlined in section 3553(a), we also would find the district court’s sentence

was reasonable. Cf. United States v. Winingear, --- F.3d ----, 2005 WL 2077087 *4 (11th Cir. Aug.

30, 2005) (considering § 3553(a) factors, as applied to defendant’s sentence, and finding sentence

was reasonable).

10

category of offense committed by the applicable category of defendant as set forth

in the guidelines . . . (6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct”).

After Booker, “all guidelines decisions are now advisory,” United States v.

Magluta, --- F.3d ----, 2005 WL 1750143 *13 (11th Cir. Jul. 27, 2005), which the

district court recognized in the instant case. We can find no indication that the

district court considered, or applied, the Guidelines as mandatory, rather than

discretionary. Moreover, even if there was Booker error, of either type, we would

find no effect on McKeever’s substantial rights since it is clear beyond any

reasonable doubt, given the court’s imposition of a sentence above the Guidelines

range, its consideration of Booker, Rodriguez, and Duncan, and its enumeration of

some of the § 3553(a) factors, that McKeever would receive the same sentence at a

new sentencing hearing. Accordingly, we affirm his sentence.

2

AFFIRMED.