[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 9, 2005
Nos. 04-13492 & No. 04-13581 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00218-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN PATRICK SZABO,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Alabama
_________________________
(September 9, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before: ANDERSON, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
This appeal of Kevin Patrick Szabo regarding the imposition of his sentence
is on remand from the Supreme Court of the United States for further consideration
in the light of United States v. Booker, 543 U.S. —, 125 S. Ct. 738 (2005). See
Szabo v. United States, — U.S. — , 125 S. Ct. 1998 (2005). We previously
affirmed Szabo’s sentence. United States v. Szabo, Nos. 04-13492 & No. 04-
13581 (11th Cir. Dec. 30, 2004). After reconsideration, we vacate Szabo’s
sentence and remand this case to the district court for resentencing.
Szabo, a federal prisoner convicted on two counts of bank robbery, appealed
the imposition of a sentencing enhancement under section 2B3.1(b)(2)(F) of the
United States Sentencing Guidelines for making a threat of death. Szabo argued,
under Blakely v. Washington, 524 U.S. 296, 124 S. Ct. 2531 (2004), that the
admissions he made in his plea agreements that during the robberies he had told the
bank tellers “‘I have a gun’ (or words to that effect)” were insufficient to prove that
he had made a threat of death. Because Szabo’s admissions were sufficient to
support the enhancement and this Court had held that Blakely did not apply to the
federal sentencing guidelines, we affirmed Szabo’s sentence.
On remand, Szabo does not argue that his admissions were insufficient to
support the sentencing enhancement for making a threat of death. Szabo
challenges only the imposition of his sentence under a mandatory guideline
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system. Because Szabo objected to his sentence on the grounds of Blakely, he
properly preserved this objection. See United States v. Mathenia, 409 F.3d 1289,
1291 (11th Cir. 2005). We review Szabo’s Booker objection, therefore, to
determine if the error was harmless. Id. Statutory Booker 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.” Id. at 1292 (internal quotation
marks and citation omitted). The government bears the burden to show that the
error was harmless. Id.
The government has not established that the error did not affect Szabo’s
sentence or “had but very slight effect.” The sentence, therefore, is vacated and
this case remanded to the district court for resentencing.
VACATED AND REMANDED.
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