United States v. Timmy Davis, 407 F.3d 1269 (11th Cir. 2005). · Go Syfert
United States v. Timmy Davis, 407 F.3d 1269 (11th Cir. 2005). Cases Citing This Book View Copy Cite
91 citation events (90 in the last 25 years) across 3 distinct courts.
Strongest positive: United States v. Jimenez (ca11, 2014-05-20)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Jimenez
11th Cir. · 2014 · confidence medium
United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005) (internal quotation marks omitted).
discussed Cited as authority (rule) United States v. Livesay
11th Cir. · 2008 · confidence medium
The district court may consider factors beyond those five, “but only if the factors relate to the assistance provided by the defendant.” Martin, 455 F.3d at 1235, 1239 (concluding that the district court committed legal error by considering, in its § 5K1.1 analysis, the threat of future civil liability, which was not assistance-related) (emphasis added); see also McVay, 447 F.3d at 1354-55 (declining to consider extent of § 5K1.1 departure because district court had committed legal error by considering only non-assistance related facts — McVay’s “exemplary record” and his “rela…
discussed Cited as authority (rule) United States v. Lourdes Gonzales Cardenas
11th Cir. · 2007 · confidence medium
Cardenas was sentenced before the Supreme Court issued its decision in United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), which, among other things, “rendered the [Sentencing Guidelines effectively advisory [to] comport with the Sixth Amendment....” United States v. Davis, 407 F.3d 1269, 1270 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Eddie Lee Wooten
11th Cir. · 2006 · confidence medium
Because “[w]e simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a),” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005), we cannot conclude that the error was harmless.
discussed Cited as authority (rule) United States v. Michael Martin
11th Cir. · 2006 · confidence medium
McVay, 447 F.3d at 1355 ; United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005). 7 Further, as explained in McVay , a defendant may not appeal a district court’s refusal to make a § 5K1.1 departure, but if the court departs, we will review the government’s challenge to the extent of a departure under § 5K1.1 for an abuse of discretion.
discussed Cited as authority (rule) United States v. David E. Martinelli (2×)
11th Cir. · 2006 · confidence medium
When a district court commits constitutional Booker error, the government must prove beyond a reasonable doubt “that the mandatory, as opposed to the advisory, application of the guidelines did not contribute to the defendant’s sentence.” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
cited Cited as authority (rule) United States v. Michael A. Crisp
11th Cir. · 2006 · confidence medium
United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Robert L. Perkins
11th Cir. · 2006 · signal: cf. · confidence medium
Cf. United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005) (finding harmful constitutional Booker error and remanding case for re-sentencing when reviewing court found no indication of what sentencing court would have done had it understood the Guidelines to be advisory).
discussed Cited as authority (rule) United States v. Desselle
5th Cir. · 2006 · confidence medium
See, e.g., United States v. Pepper, 412 F.3d 995, 998 (8th Cir.2005) (even though § 5K1.1 *183 provides a non-exhaustive list of factors to consider, the maxim that words are known by their companions requires that any additional factors a district court uses must be related to the defendant’s assistance); United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005) (“While the sentencing court had discretion under § 5K1.1 in deciding whether to depart from the guidelines and the extent of that departure, it did not have the discretion to consider factors unrelated to the nature and type …
discussed Cited as authority (rule) United States v. Malcolm E. McVay
11th Cir. · 2006 · signal: cf. · confidence medium
See Luiz, 102 F.3d at 469 ; cf. United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005) (rejecting government’s argument that district court’s grant of § 5K1.1 motion rendered Booker error harmless beyond a reasonable doubt; “The flaw in the Government’s argument is that the grant of § 5K1.1 did not give the sentencing court ‘unfettered’ discretion, but rather, gave the court only limited discretion to consider the assistance that Davis rendered.”).
discussed Cited as authority (rule) United States v. Patrick O'Neal Thompson
11th Cir. · 2006 · confidence medium
For a constitutional Booker error to be harmless, the government “must prove beyond a reasonable doubt ‘the mandatory, as opposed to the advisory, application of the guidelines did not contribute to the defendant’s sentence.” ’ Id. at 1348 (quoting United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005)).
discussed Cited as authority (rule) United States v. Charles J. Kerns (2×) also: Cited "see"
11th Cir. · 2006 · confidence medium
United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.2005).
discussed Cited as authority (rule) United States v. James Hubert Cain
11th Cir. · 2005 · confidence medium
Specifically, in constitutional error cases, the Government must prove beyond a reasonable doubt “the mandatory, as opposed to the advisory, application of the guidelines did not contribute to the defendant’s sentence.” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
cited Cited as authority (rule) United States v. Frances J. Dukes
11th Cir. · 2005 · confidence medium
United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.2005) (per curiam).
discussed Cited as authority (rule) United States v. Harold Todd, Jr.
11th Cir. · 2005 · confidence medium
After review of the sentencing proceedings, we cannot say with fair assurance that Defendant’s sentence was not swayed substantially by the mandatory application of the guidelines. ‘We simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Charles Looney
11th Cir. · 2005 · confidence medium
“We simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Marzell Deshond Turnbough
8th Cir. · 2005 · confidence medium
United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005); see also United States v. Pepper, 412 F.3d 995, 998 (8th Cir.2005) (“[T]he extent of a downward departure made pursuant to § 5K1.1 can be based only on assistance-related considerations.”).
discussed Cited as authority (rule) United States v. Marzell Turnbough
8th Cir. · 2005 · confidence medium
United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005); see also United States v. Pepper, 412 F.3d 995, 998 (8th Cir. 2005) (“[T]he extent of a downward departure made pursuant to § 5K1.1 can be based only on assistance-related considerations.”).
cited Cited as authority (rule) United States v. Kathy Mills Lee
11th Cir. · 2005 · confidence medium
United States v. Davis, 407 F.3d 1269, 1270 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Hensel Joseph (2×) also: Cited "see"
11th Cir. · 2005 · confidence medium
United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.2005) (per curiam).
discussed Cited as authority (rule) United States v. Vicente Zarabia
11th Cir. · 2005 · confidence medium
“We simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a).” United States v. Davis, 407 F.3d 1269,1271 (11th Cir.2005). 3 Accordingly, we vacate Zarabia’s sentence and remand his case to the district court for resentencing. 4 Because we are remanding the case to the district court, we note that the district court correctly calculated Zarabia’s Guidelines range.
discussed Cited as authority (rule) United States v. Richard A. Nunes
11th Cir. · 2005 · confidence medium
Accordingly, “[w]e simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Ricardo Buitron
11th Cir. · 2005 · confidence medium
However, as to the length of incarceration, “[w]e simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005).
discussed Cited as authority (rule) United States v. Gabriel Vasquez-Torres
11th Cir. · 2005 · confidence medium
However, “[w]e simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Buitron
11th Cir. · 2005 · confidence medium
However, as to the length of incarceration, “[w]e simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Kendrick Lavon Taylor (2×) also: Cited "see"
11th Cir. · 2005 · confidence medium
On this record, “[w]e simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
cited Cited as authority (rule) United States v. Kelone Levese Holmes
11th Cir. · 2005 · confidence medium
United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Louis Gerald Indell
11th Cir. · 2005 · confidence medium
In United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005), using the higher harmless beyond a reasonable doubt standard used in Booker constitutional error cases, we held the district court’s grant of the government’s U.S.S.G. § 5K1.1 motion for a downward departure based on the defendant’s substantial assistance neither removed nor rendered harmless beyond a reasonable doubt any Booker error.
cited Cited as authority (rule) United States v. Dorian D. Cotledge
11th Cir. · 2005 · confidence medium
United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.2005).
cited Cited as authority (rule) United States v. Antonio Allen
11th Cir. · 2005 · confidence medium
United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir. May 4, 2005) (per curiam).
discussed Cited as authority (rule) United States v. Reginald Molden
11th Cir. · 2005 · signal: cf. · confidence medium
Cf. United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.2005) *13 (“We simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a).
discussed Cited as authority (rule) United States v. Lauda Mojica
11th Cir. · 2005 · confidence medium
United States v. Robles, 408 F.3d 1324, 1327 (11th Cir.2005); United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.2005) (holding that the government failed to demonstrate that non-constitutional Booker error was harmless where the record did not demonstrate what sentence the district court would have imposed absent the error).
discussed Cited as authority (rule) United States v. Elester Middlebrook
11th Cir. · 2005 · confidence medium
Put another way, the error is harmless if “the Government ... show[s] that the mandatory, as opposed to the advisory, application of the guidelines did not contribute to the defendant’s sentence.” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Fernando Medrano Rodriguez (2×) also: Cited "see"
11th Cir. · 2005 · confidence medium
Accordingly, “[w]e simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Tara L. McGavan
11th Cir. · 2005 · confidence medium
Thus, the government must show beyond a reasonable doubt “that the mandatory, as opposed to the advisory, application of the guidelines did not contribute to the defendant’s sentence.” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Julian Nicholas, Jr. (2×)
11th Cir. · 2005 · confidence medium
Cf. United States v. Anderson, 289 F.3d 1321, 1326 (11th Cir. 2002), cert. denied, 537 U.S. 1195 , 123 S.Ct. 1250 , 154 L.Ed.2d 1031 (2003) (holding that Apprendi error, which is constitutional in nature, may be harmless if the government proves beyond a reasonable doubt that such error did not affect the defendant’s substantial rights); Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”). 5 “In cases involving preserved Booker error, the Government must show that the mandatory, as opposed to the advisory, a…
discussed Cited as authority (rule) United States v. Carol Mitchell (2×) also: Cited "see"
11th Cir. · 2005 · confidence medium
Accordingly, “[w]e simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553 (a).” United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.2005).
discussed Cited as authority (rule) United States v. Viviane Aladin (2×) also: Cited "see"
11th Cir. · 2005 · confidence medium
“In cases involving preserved Booker error, the Government must show that the mandatory, as opposed to the advisory, application of the guidelines did not contribute to the defendant’s sentence.” United States v. Davis, 407 F.3d 1269, 1270-71 (11th Cir.2005) (citing Paz, 405 F.3d at 948-49 ).
discussed Cited as authority (rule) United States v. George Anthony Pippen (2×)
11th Cir. · 2005 · confidence medium
“In cases involving preserved Booker error, the Government must show that the mandatory, as opposed to the advisory, application of the guidelines did not contribute to the defendant’s sentence.” United States v. Davis, 407 F.3d 1269, 1270 (11th Cir.2005) (citing Paz, 405 F.3d at 948 ).
cited Cited as authority (rule) UNITED STATES OF AMERICA v. ERIK PAZ
unknown court · confidence medium
United States v. Davis, __ F.3d __, No. 04-14585, 2005 WL 1033422, at *1-2 (11th Cir. May 4, 2005).
cited Cited "see" United States v. Christopher Bass
11th Cir. · 2005 · signal: see · confidence high
See United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005).
cited Cited "see" United States v. Jason M. Moriarty
11th Cir. · 2005 · signal: see · confidence high
See United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005) (per curiam).
cited Cited "see" United States v. Edward Melvin
11th Cir. · 2005 · signal: see · confidence high
See United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.2005) (per curiam).
discussed Cited "see" United States v. Dillard Ross (2×)
11th Cir. · 2005 · signal: see · confidence high
See United States v. Davis, 407 F.3d 1269, 1270 (11th Cir.2005).
discussed Cited "see" United States v. Zatar Hunt
11th Cir. · 2005 · signal: see · confidence high
See United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005); Compare United States v. Phillips, 413 F.3d 1288, 1293 (11th Cir.2005) (finding statutory error harmless where district court articulated alternate sentence using factors set forth in 18 U.S.C. § 3553 (a)) (citing Mathenia, 409 F.3d at 1292-93 ; Petho, 409 F.3d at 1280 ; United States v. Robles, 408 F.3d 1324, 1327 (11th Cir.2005)). 2 VACATED AND REMANDED. 1 .
discussed Cited "see" United States v. James Edward Brown (2×)
11th Cir. · 2005 · signal: see · confidence high
See United States v. Davis, 407 F.3d 1269, 1270 (11th Cir.2005).
discussed Cited "see" United States v. German Castillo-Lagos
11th Cir. · 2005 · signal: see · confidence high
See United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005); Compare United States v. Phillips, 413 F.3d 1288, 1293 (11th Cir.2005) (finding statutory error harmless where district court articulated alternate sentence using factors set forth in 18 U.S.C. § 3553 (a) (citing Mathenia, 409 F.3d at 1292-93 ; United States v. Petho, 409 F.3d 1277, 1280 (11th Cir.2005); United States v. Robles, 408 F.3d 1324, 1327 (11th Cir.2005)). 3 Finally, we are unpersuaded by Castillo-Lagos’s argument that the district court’s requirement that he cooperate with the government in the collection of his D…
cited Cited "see" United States v. Albino Obregon
11th Cir. · 2005 · signal: see · confidence high
See United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.2005) (per curiam).
cited Cited "see" United States v. Brian Thomas Boone
11th Cir. · 2005 · signal: see · confidence high
See United States v. Davis, 407 F.3d 1269, 1270 (11th Cir.2005).
cited Cited "see" United States v. Cheryl Lonnell Cowan
11th Cir. · 2005 · signal: see · confidence high
See United States v. Davis, 407 F.3d 1269,1270 (11th Cir.2005).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Timmy DAVIS, Defendant-Appellant
04-14585.
Court of Appeals for the Eleventh Circuit.
May 4, 2005.
407 F.3d 1269
2005 WL 1033422
David McCrea (Court-Appointed), Law Office of David McCrea, Ama, GA, for Defendant-Appellant., Amy Lee Copeland, Savannah, GA, for Plaintiff-Appellee.
Anderson, Carnes', Marcus.
Cited by 69 opinions  |  Published
PER CURIAM:

In this case, we apply harmless error analysis to a claim made pursuant to United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We reject the Government’s argument that the grant of its U.S.S.G. § 5K1.1 motion eliminated or rendered harmless any Booker error/ Accordingly, we vacate Davis’s sentence, and remand for resentencing consistent with the Supreme Court opinions in Booker.

Timmy Davis pleaded guilty to possession of pseudoephedrine with intent to manufacture methamphetamine, a violation of 21 U.S.C: § 841(c)(1). - In his guilty plea, Davis did not admit to any specific drug quantity. At sentencing, the district court determined that 11.82 grams of pseu-doephedrine was attributable to Davis, and following the then-mandatory Federal Guidelines, assigned him a base level of twenty-six. The court reduced this to level twenty-three after giving him credit for acceptance of responsibility. The court computed Davis’s criminal history as category two, and noted that the guidelines recommended a range of 51-63 ■ months’ imprisonment for criminal history category two at offense level twenty-three. The Government made a motion for downward departure pursuant to U.S.S.G. § 5K1.1 because Davis cooperated with the Government, and his cooperation helped the Government obtain guilty pleas from other defendants. The sentencing court granted the motion, departed downward from the guidelines, and imposed a sentence of 38 months’ imprisonment.

While this case was pending on appeal, the Supreme Court decided United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Supreme Court did two things: first, following Blakely v. Washington, 542 U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), it held that sentence enhancements based solely on judicially found facts pursuant to the mandatory Federal Sentencing Guidelines violated the Sixth Amendment; and second, it rendered the guidelines effectively advisory in order to comport with the Sixth Amendment- by excising those provisions of the statute that made the guidelines mandatory. Id., 125 S.Ct. at 749-51, 764. The Supreme Court stated that even though the guidelines were effectively advisory, the Federal Sentencing Act “nonetheless requires judges to take account of the Guidelines together with other sentencing goals” announced in 18 U.S.C. § 3553(a). Id. at 764.

Davis’s sentence was enhanced, under a mandatory guidelines system, based on facts found by the judge and not admitted by him, and Booker indicates that was a violation of Davis’s Sixth Amendment right. Id. at 756. In the district court and in his initial brief on appeal, Davis argued that the court’s finding' with respect to drug quantity violated his constitutional rights according to the Supreme Court’s decision in Blakely. Davis therefore timely raised his constitutional objection. Accordingly, we review the constitutional issue de novo, and we will reverse and remand unless the Government can demonstrate that the- error was harmless beyond a reasonable doubt. See United States v. Paz, 405 F.3d 946 (11th Cir.2005) (applying harmless error review to a sentence imposed using extra-verdict en[*1271] hancements in a mandatory guideline system).

In Paz, we explained that harmless error analysis puts the burden on the Government to show “‘beyond a reasonable doubt that the error complained of did not contribute to the sentence obtained.’ ” Id. at 948 (quoting United States v. Candelario, 240 F.3d 1300, 1307 (11th Cir.2001)). In eases involving preserved Booker error, the Government must show that the mandatory, as opposed to the advisory, application of the guidelines did not contribute to the defendant’s sentence. Id. at 948-49 (holding that the Government could not meet its burden under harmless error analysis because the record indicated that had the guidelines been advisory, his sentence would have been shorter); see also United States v. Rodriguez, 398 F.3d 1291, 1300-01 (11th Cir.2005) (applying plain-error review and stating the constitutional error in Booker depended on a mandatory application of the guidelines, and the question of prejudice turned on the probability of a different result in an advisory, as opposed to a mandatory, guidelines system).

In Davis’s case, the Government argues that the mandatory application of the guidelines was harmless because the Government requested, and the judge applied, a downward departure pursuant to U.S.S.G. § 5K1.1. U.S.S.G. § 5K1.1 is a provision of the guidelines that allows the court to depart from the guidelines based on the defendant’s assistance to authorities when the Government motions for such a departure. According to the Government, its § 5K1.1 motion gave the court “virtually unfettered discretion to impose a sentence outside the guidelines range.” The Government reasons that this discretion removed any Booker error, or rendered any Booker error harmless because the guidelines were not “mandatory” in this particular case.

We cannot conclude that the sentencing court’s grant of the § 5K1.1 motion either removed Booker .error or rendered it harmless beyond a reasonable doubt. The flaw in the Government’s argument is that the grant of § 5K1.1 did not give the sentencing court “unfettered” discretion, but rather, gave the court only limited discretion to consider the assistance that Davis rendered. This Court had previously stated, “When, on the Government’s motion, a district court grants a downward departure under U.S.S.G. § 5K1.1 ..., the sentence reduction may be based only on factors related to the defendant’s substantial assistance.” United States v. Luiz, 102 F.3d 466, 469 (11th Cir.1996); accord United States v. Aponte, 36 F.3d 1050, 1052 (11th Cir.1994); United States v. Chavarria-Herrera, 15 F.3d 1033, 1037 (11th Cir.1994). [1] While the sentencing court had discretion under § 5K1.1 in deciding whether to depart from the guidelines and the extent of that departure, it did not have the discretion to consider factors unrelated to the nature and type of Davis’s assistance. Importantly, the sentencing court could not permissibly consider the sentencing factors announced in 18 U.S.C. § 3553(a) when exercising its discretion in deciding whether and how much to depart.

We simply do not know what the sentencing court would have done had it understood the guidelines to be advisory rather than mandatory, and had properly considered the factors in 18 U.S.C. § 3553(a). Therefore, the Government[*1272] cannot meet its burden of showing that the mandatory application of the guidelines in violation of Davis’s Sixth Amendment right was harmless beyond a reasonable doubt. Cf. Rodriguez, 398 F.3d at 1301 (applying plain error analysis, and stating that because the defendant bore the burden of persuasion and no one could know what would have happened in an advisory system, the defendant could not meet his burden).

Accordingly, we REVERSE and REMAND for re-sentencing consistent with Booker.

1

. The Government’s brief emphasizes that Davis’s plea agreement acknowledged "whether or not the sentencing court decides to depart downward below a guideline range or statutory minimum sentence, or reduce the defendant's sentence, as well as the extent of any such downward departure or reduction, is completely within the sentencing court’s discretion.” This is simply an acknowledgment of the sentencing court's limited discretion to depart downward on the basis of Davis’s assistance.