[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 04-15164 ELEVENTH CIRCUIT
OCTOBER 6, 2005
Non-Argument Calendar
THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 04-00018-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARTIN ZUNIGA-SALINAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 6, 2005)
Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit
Judges.
PER CURIAM:
Defendant-Appellant Jose Martin Zuniga-Salinas appeals his 77-month
sentence, imposed after he pled guilty to illegal reentry of a previously deported
alien, in violation of 8 U.S.C. § 1326(a), (b)(2). Defendant argues that, under
Blakely v. Washington, 124 S.Ct. 2531 (2004), the district court violated his Fifth
and Sixth Amendment rights when it enhanced his sentence based on the fact of
his prior convictions for drug trafficking, which were not charged in the
indictment, proved to a jury beyond a reasonable doubt, or admitted by him.
Reversible error exists under United States v. Booker, 125 S.Ct. 738 (2005); we
vacate Defendant’s sentence and remand for resentencing consistent with Booker.
Defendant properly raised his Blakely/Booker claim in the district court.
See United States v. Dowling, 403 F.3d 1242, 1245 (11th Cir. 2005). We review
this issue de novo; we will reverse unless the government shows that any error was
harmless. See United States v. Robles, 408 F.3d 1324, 1327 (11th Cir. 2005).
Defendant’s 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) was
based solely on the fact that he had previous convictions. In Almendarez-Torres
v. United States, 118 S.Ct. 1219 (1998), the Supreme Court stated that the
government need not allege in the indictment and need not prove beyond a
reasonable doubt that a defendant had a prior conviction for a district court to use
that conviction to enhance a sentence. “This conclusion was left undisturbed by
Apprendi, Blakely, and Booker.” United States v. Shelton, 400 F.3d 1325, 1329
(11th Cir. 2005). Thus, the district court did not violate Defendant’s constitutional
2
rights by applying the § 2L1.2(b)(1)(A)(i) enhancement based on his prior
convictions. See United States v. Gallegos-Aguero, 409 F.3d 1274, 1276-77 (11th
Cir. 2005).
But the district court did commit a statutory error under Booker. See United
States v. Dacus, 408 F.3d 686, 688 (11th Cir. 2005) (under Booker, two types of
sentencing errors exist: “one is constitutional and the other is statutory”).1 The
statutory error occurs when the district court sentences a defendant “under a
mandatory Guidelines scheme, even in the absence of a Sixth Amendment
enhancement violation.” Shelton, 400 F.3d at 1330-31. Booker statutory errors
are subject to a less demanding harmless error test that is applicable to non-
constitutional errors. See United States v. Mathenia, 409 F.3d 1289, 1292 (11th
Cir. 2005). That standard requires us to determine whether the error either did not
affect the sentence or only had a slight effect. Id.
Here, the government concedes that the district court’s statutory error of
applying the guidelines in a mandatory fashion was not harmless. The district
court overruled Defendant’s Blakely objection because in Blakely, the Supreme
Court stated that it was not addressing the federal sentencing guidelines, and
1
In Shelton, where the defendant raised a Booker/Blakely constitutional claim in his initial brief,
we also considered whether statutory error existed. See Shelton, 400 F.3d at 1330.
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because of controlling precedent from this Court.2 The district court made no
statement that it would have imposed an identical sentence if it had been
proceeding under an advisory guidelines system. The court did mention that it
saw no need to impose a sentence greater than 77 months -- at the bottom of the
guideline range of 77 to 96 months’ imprisonment -- based on its belief that this
sentence “will accomplish all that is going to be accomplished in terms of the
effects of incarceration and how that will affect [Defendant’s] future conduct.”
This statement is some evidence that perhaps the district court would impose the
same sentence after considering the factors in 18 U.S.C. § 3553(a). But the court
made no other comment about the appropriateness of the sentence. We cannot say
on this record that Defendant’s sentence was not swayed substantially by the
district court’s application of the guidelines as mandatory, rather than advisory.
In sum, although the district court properly applied the 16-level
enhancement under § 2L1.2(b)(1)(A)(i), Defendant must be resentenced under the
advisory guidelines system in accordance with Booker.
VACATED and REMANDED.
2
Shortly before Defendant was sentenced and before the Supreme Court decided Booker, we
declined to apply the principles set out in Blakely to the federal sentencing guidelines. United States
v. Reese, 382 F.3d 1308 (11th Cir. 2004), vacated, 125 S.Ct. 1089 (2005).
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