USA v. Anthony Bertucci, No. 04-12918 (11th Cir. 2006)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _____________________________U.S. COURT OF APPEALS ELEVENTH CIRCUIT APR 13, 2006 No. 04-12918 _____________________________ THOMAS K. KAHN CLERK D. C. Docket No. 03-00009 CR-FTM-29-DNF UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY BERTUCCI, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (April 13, 2006) Before EDMONDSON, Chief Judge, ANDERSON and FAY, Circuit Judges. PER CURIAM: Anthony Bertucci ( Defendant ) was convicted of conspiracy to possess with intent to distribute 100 kg or less of marijuana. Defendant attacks his conviction on two grounds. First, Defendant argues the district court erred by denying his motion to suppress evidence seized from his residence. Because this evidence was obtained pursuant to a search warrant supported by recent evidence of trash pulls and an indictment that corroborated older information that Defendant was distributing drugs from his house, the evidence was properly admitted. Second, Defendant argues he is entitled to a new trial, because the evidence at trial established multiple conspiracies, not the single conspiracy indicted. Assuming that the evidence did establish multiple conspiracies, Defendant would still not be entitled to reversal of his conviction, because he has not shown substantial prejudice. See U.S. v. Coy, 19 F.3d 629, 633 (11th Cir. 1994). Third, Defendant challenges his sentence, arguing the district court committed reversible constitutional error under United States v. Booker, 125 S.Ct. 738 (2005). The government concedes this error. And we accept that there is harmful error. We affirm Defendant s conviction, but vacate the sentence and remand for resentencing. AFFIRMED in part, VACATED in part, and REMANDED. 2
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