United States v. Tracy Kaprice Cotton , 186 F. App'x 893 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15396 JUNE 26, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00051-CR-002
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRACY KAPRICE COTTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 26, 2006)
Before ANDERSON, CARNES and PRYOR, Circuit Judges,
PER CURIAM:
Tracy Kaprice Cotton appeals her 108-month sentence for attempting to
manufacture more than 50 grams of a mixture and substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C. § 846, which
was imposed upon resentencing under an advisory guidelines scheme after United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed 621 (2005). On appeal,
Cotton argues that the district court violated her Sixth Amendment right to trial by
jury, in light of Booker, when it enhanced her sentence based on facts that were not
charged in the indictment, proven to a jury, or admitted by her. She maintains that
even though the district court sentenced her under an advisory guidelines scheme,
because the court based its sentence upon guidelines that were calculated in
violation of her Sixth Amendment rights, the constitutional defect remains, and her
base offense level should have been calculated without any enhancements, so as
not to exceed the “prescribed statutory maximum.”
Because Cotton raised a constitutional objection to her sentence before the
district court based on Booker, we review the constitutional issue de novo, but will
reverse only for a harmful error. See United States v. Paz, 405 F.3d 946, 948 (11th
Cir. 2005). In Booker, the Supreme Court held that the mandatory nature of the
Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s
guarantee to the right to a jury trial, and, as a remedy, excised the portion of the
guidelines mandating that district courts impose a sentence within the applicable
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guidelines range. Id. at 258-59, 125 S.Ct. at 764. We have held that, after Booker,
“the district court remains obliged to ‘consult’ and ‘take into account’ the
Guidelines in sentencing,” and “[t]his consultation requirement, at a minimum,
obliges the district court to calculate correctly the sentencing range prescribed by
the Guidelines.” United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005)
(emphasis in original). Also after Booker, a district court, in determining a
reasonable sentence, is required to take into account the advisory guidelines range
and the sentencing factors set forth in 18 U.S.C. § 3553(a). See Booker, 543 U.S.
at 259-60, 125 S.Ct. at 764-66. “The factors in § 3553(a) include: (1) the nature
and circumstances of the offense; (2) the history and characteristics of the
defendant; (3) the need for the sentence imposed to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment; (4) the
need to protect the public; and (5) the Guidelines range.” United States v. Scott,
426 F.3d 1324, 1328-29 (11th Cir. 2005) (citing 18 U.S.C. § 3553(a)).
Because Cotton was sentenced under an advisory guidelines scheme, no
constitutional error occurred in her resentencing. Accordingly, we affirm her
sentence.
AFFIRMED.
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