On appeal, Ellwood argues that the district court erred in using the 245-gram drug quantity from the presentence investigation report (PSI) because the jury did not find it and she did not admit it. She also maintains that, after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court was limited to using the amount found by the jury. Herold argues that the district court violated his Sixth Amendment right to a jury trial when it unilaterally determined that he obstructed justice. Because Ellwood objected to the use of the drug quantity below based on the jury finding, she has sufficiently preserved her Booker objection. See United States v. Dowling, 403 F.3d 1242, 1245 (11th Cir.), cert. denied, — U.S.-, 126 S.Ct. 462, 163 L.Ed.2d 351 (2005) (<HOLDING>). Thus, we review her challenge de novo. United
recognizing the right to trial by jury is a constitutional right to be given the same protections as other constitutional rights holding that defendant failed to raise a constitutional issue at trial and thus failed to preserve the issue for appellate review holding that defendant failed to raise a constitutional issue at trial and thus waived appellate review of that issue holding that to preserve a booker constitutional claim for appellate review a defendant can refer to the right to have a jury decide a disputed fact or raise a challenge to the role of the judge as a factfinder with regard to sentencing holding that because appellant had waived review of constitutional challenge to sentencing statute by failing to raise it at the first opportunity the trial court correctly proceeded to examine whether the appellants trial counsel was ineffective for failing to raise constitutional challenges to the sentencing statutes