[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 4, 2005
No. 05-10976 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00217-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFERY WORTHY,
a.k.a. Jeffrey Kenneth Worthy,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 4, 2005)
Before ANDERSON, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Jeffery Worthy appeals his 300-month sentence for carjacking, in violation
of 18 U.S.C. § 2119. The district court enhanced his sentence pursuant to U.S.S.G.
§ 4B1.1 based on his status as a career offender. On appeal, Worthy first argues
that the Supreme Court’s decision in United States v. Booker, 543 U.S.___, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005), requires that he be re-sentenced, as the district
court both sentenced him pursuant to a mandatory guidelines scheme and enhanced
his sentence based upon factual findings neither admitted by him nor found by a
jury beyond a reasonable doubt. Second, Worthy argues that, under Booker, the
district court imposed an unreasonable sentence because it failed to consider the
factors set forth at 18 U.S.C. § 3353(a).
I.
Because Worthy timely raised an objection, pursuant to Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in the district
court, we review his Blakely/Booker claim on appeal de novo, but reverse only for
harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (citation
omitted). There are two harmless error standards, one that applies to Booker
constitutional errors, and one that applies to Booker statutory errors. United States
v. Mathenia, 409 F.3d 1289, 1291(11th Cir. 2005). “[C]onstitutional errors are
harmless where the government can show, beyond a reasonable doubt, that the
error did not contribute to the defendant’s ultimate sentence.” Id. (citation
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omitted). In contrast, Booker statutory errors are subject to the less demanding
non-constitutional error test. Id. at 1292. A “non-constitutional error is harmless
if, viewing the proceedings in their entirety, a court determines that the error did
not affect the [sentence], ‘or had but very slight effect.’ If one can say ‘with fair
assurance . . . that the [sentence] was not substantially swayed by the error,’ the
[sentence] is due to be affirmed even though there was error.” Id. (citations
omitted). The government has the burden of proof under both standards. See id.
Upon review of the record and consideration of the parties’ briefs, we discern no
reversible error.
A Booker constitutional error exists when a defendant’s sentence is
enhanced based solely on judicially found facts, other than prior convictions,
neither admitted by the defendant nor found by the jury. Paz, 405 F.3d at 948;
United States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir. 2005). Here,
the district court enhanced Worthy’s 300-month sentence based on prior
convictions. Such an enhancement does not constitute a Sixth Amendment
violation under Booker. See Gallegos-Aguero, 409 F.3d at 1276. Contrary to
Worthy’s suggestion, the Supreme Court’s decision in Shepard v. United States,
__ U.S. __, 125 S.Ct. 1254, 1262, 161 L.Ed.2d 205 (2005) did not change this rule,
but rather cited the rule with approval.
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In contrast, a Booker “statutory error occurs when the district court
sentences a defendant ‘under a mandatory [g]uidelines scheme, even in the absence
of a Sixth Amendment enhancement violation.’” Mathenia, 409 F.3d at 1291.
Under this standard, the government has the burden to show that the error did not
affect, or had but a very slight effect on, the sentence. Id. at 1292. In determining
whether the government has met this burden, we carefully review the PSI and the
sentencing hearing transcript. Gallegos-Aguero, 409 F.3d at 1277.
In Mathenia, we held the district court’s Booker statutory error harmless
based on comments from the district court that it would sentence the defendant
identically even if the federal guidelines were declared unconstitutional. Mathenia,
409 F.3d at 1292-129; see also United States v. Petho, 409 F.3d 1277, 1280 (11th
Cir. 2005) (same); United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005)
(same). Here, the district court explicitly stated that, even assuming the federal
guidelines were not mandatory, it would sentence Worthy identically. Based on
this language, and the above-cited cases, the government has met its burden in
showing that any Booker statutory error was harmless.
II.
Worthy also argues that the district court violated Booker by failing to
consider the § 3553(a) factors, thus imposing an unreasonable sentence. Upon
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review of the record and consideration of the parties’ briefs, we likewise discern no
reversible error here. The district court explicitly accounted for and expounded
upon a number of the § 3353(a) factors. For instance, the district court considered
the nature of the offenses, including Worthy’s numerous sexual assaults on the
victims, as well as Worthy’s lack of remorse and his violent criminal history,
which included a number of armed robberies and weapons offenses. Moreover, the
district court stated that it based Worthy’s sentence “upon my having seen the trial
of the case and the facts that I am aware of . . . .” thus undermining Worthy’s main
argument that the district court did not consider evidence produced at trial that he
was seeking drug treatment at the time of his arrest and had struggled with a long-
term cocaine addiction.
AFFIRMED.
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