[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-10469 ELEVENTH CIRCUIT
Non-Argument Calendar August 30, 2005
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 04-00081-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENDRICK LAVON TAYLOR,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 30, 2005)
Before ANDERSON, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Kendrick LavonTaylor appeals his conviction and 35-month sentence, which
was imposed after he pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). On appeal, Taylor argues that: (1) his conviction
was unconstitutional, under the Commerce Clause, because § 922(g)(1) does not
regulate an activity with a sufficient nexus to interstate commerce; and (2) he was
sentenced in violation of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160
L. Ed. 2d 621 (2005), because the district court enhanced his sentence based upon
facts not charged in the indictment or admitted by him, pursuant to a mandatory
sentencing scheme.
We review the constitutionality of statutes de novo. United States v. Scott, 263
F.3d 1270, 1271 (11th Cir. 2001). Taylor preserved his Booker error by objecting,
based on Blakely v. Washington, 542 U.S. ___, 124 S. Ct 2531, 159 L. Ed. 2d 403
(2004), at sentencing. See United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir.
2005) (holding that appellant properly preserved Booker claim by citing Blakely in
his written objections to the PSI and reminding the court at sentencing of his Blakely
objection). Accordingly, he is entitled to preserved error review, meaning that we
review his claim de novo, but will reverse only for harmful error. See United States
v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (citation omitted). “‘To find harmless
error, we must determine that the error did not affect the substantial rights of the
parties.’” Id. (quoting United States v. Hernandez, 160 F.3d 661, 670 (11th Cir.
1998)). “The burden is on the government to show that the error did not affect the
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defendant’s substantial rights.” Id. (citing United States v. Olano, 507 U.S. 725, 741,
113 S. Ct. 1770, 1781, 123 L. Ed. 2d 508 (1993)).
Upon thorough review of the record, as well as careful consideration of the
parties’ briefs, we affirm Taylor’s conviction, but find Booker statutory, or non-
constitutional, error that the government cannot establish was harmless. We
therefore vacate and remand his sentence for resentencing consistent with the
remedial holding of Booker.
The relevant facts are straightforward. On April 20, 2004, Taylor was indicted
for one count of possession of a firearm by a convicted felon, in violation of §
922(g)(1). Without the benefit of a plea agreement, Taylor entered a plea of guilty
to the crime charged. During the plea colloquy, Taylor admitted, among other things,
that he had been in possession of a gun after being convicted of a felony and that the
gun had traveled in interstate commerce. He then proceeded to sentencing.
According to the presentence investigation report (“PSI”), Taylor’s base
offense level was 14, pursuant to U.S.S.G. 2K2.1(a)(6). After a 2-point reduction for
acceptance of responsibility, his adjusted offense level was 12. With a criminal
history category of V, his Sentencing Guidelines range was 27 to 33 months’
imprisonment. After the PSI was prepared Taylor requested that he receive a 180-day
departure, pursuant to U.S.S.G. § 5G1.3, for time served on the state charge that was
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the basis of his federal offense. Taylor’s sentencing hearing was set for September
23, 2004, but he did not appear for that hearing. The hearing was rescheduled for
September 24, 2004, but Taylor again did not appear, and a warrant was issued for
his arrest.
On January 11, 2005, Taylor appeared before the court for his sentencing
hearing, at which he renewed his request for a 180-day departure and objected to the
Probation Office’s recommendation that he not be given credit for acceptance of
responsibility due to his failure to appear at the previously set sentencing hearings.
Taylor also objected, under Blakely, to the Probation Office’s recommended two-
level enhancement for obstruction of justice, also based on his failure to appear at the
prior sentencing hearings. The district court noted that the sentencing hearing
originally had been set for some time in September, but Taylor failed to appear on the
scheduled date, and his counsel was unable to locate him. Taylor stated that he had
failed to appear because he wanted to spend more time with his children. The district
court replied that it previously had every intention of awarding Taylor a 2-level
reduction for acceptance of responsibility, but that his failure to appear was
inconsistent with acceptance, and therefore, the court would not award the reduction.
The district court also stated that a two-point enhancement for obstruction of justice
was appropriate. Thus, based on the recalculations made at the sentencing hearing,
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Taylor had a Guideline range of 41 to 51 months’ imprisonment. After granting
Taylor a 180-day downward departure for time served on his state charge, the court
imposed a 35-month sentence. This appeal followed.
Pursuant to the Commerce Clause, as interpreted in United States v. Lopez, 514
U.S. 549, 558-59, 115 S. Ct. 1624, 1629-30, 131 L. Ed. 2d 626 (1995), Congress
permissibly may regulate (1) the use of the channels of interstate commerce; (2) the
instrumentalities of interstate commerce, or persons or things in interstate commerce;
and (3) activities with a “substantial relation to interstate commerce.” In Lopez, the
Supreme Court held that the Gun-Free School Zones Act, which made it a federal
offense knowingly to possess a firearm in a school zone, was an unconstitutional
exercise of Congressional authority because “[t]he act neither regulates a commercial
activity nor contains a requirement that the possession be connected in any way to
interstate commerce.” Id. at 551, 115 S. Ct. at 1626. The Court highlighted that the
Act contained “no express jurisdictional element which might limit its reach to a
discrete set of firearm possessions that additionally have an explicit connection with
or affect on interstate commerce.” Id. at 562, 115 S. Ct. at 1631; see also United
States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000) (holding
that enactment of the civil remedy provision of the Violence Against Women Act of
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1994, 42 U.S.C. § 13981, exceeded Congress’s power under the Commerce Clause;
noting that § 13981 contained no jurisdictional element).
In United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996), we squarely
rejected the argument that, under Lopez, § 922(g)(1) exceeds Congress’s Commerce
Clause power.1 In finding the statute constitutional under the Commerce Clause, we
reasoned that, unlike the Gun-Free School Zones Act at issue in Lopez, the
felon-in-possession statute has an express jurisdictional element, which would ensure
that the firearm possession in question affects interstate commerce. McAllister, 77
F.3d at 389-90 n.4. On numerous occasions, we have held that McAllister has not
been overruled or called into question by subsequent Supreme Court decisions. See
United States v. Scott, 263 F.3d 1270, 1271, 1273-74 (11th Cir. 2001) (reaffirming
our holding that § 922(g) is constitutional under Congress’s Commerce Clause power,
and stating that “nothing in Morrison or Jones [ v. United States, 529 U.S. 848, 120
S. Ct. 1904, 146 L. Ed. 2d 902 (2000)] alters the reasoning upon which McAllister
1
Section 922(g)(1) makes it unlawful for any person:
who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to ship or transport
in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in interstate or
foreign commerce.
18 U.S.C. 922(g)(1).
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is moored.”); United States v. Dupree, 258 F.3d 1258, 1259 (11th Cir. 2001) (holding
that “Morrison does not change the holding in McAllister and that § 922(g) is a
constitutional exercise of Congress’s commerce power.”); see also United States v.
Ballinger, 395 F.3d 1218 (11th Cir.) (en banc) (rejecting facial and as-applied
challenges, based on the Commerce Clause, to 18 U.S.C. § 247, pursuant to the
“approach this Circuit has repeatedly taken to the nearly identical language found in
§ 922(g)”), pet. for cert. filed, No. 04-9627 (Apr. 7, 2005).
Simply put, under our uniform line of controlling precedent, § 922(g) is a
constitutional exercise of Congress’s Commerce Clause power. Taylor’s admission,
at the plea colloquy, that he possessed a gun that had traveled in interstate commerce
was sufficient to demonstrate the required nexus to interstate commerce.
Accordingly, we affirm Taylor’s conviction.
As for Taylor’s Booker claim, the Sixth Amendment right to trial by jury is
violated where, under a mandatory Guidelines system, a sentence is increased because
of an enhancement based on facts found by the judge that were neither admitted by
the defendant nor found by the jury. Booker, 543 U.S. ___, 125 S. Ct. at 749-56
(2005). The Booker constitutional error is the use of extra-verdict enhancements to
reach a Guidelines result that is binding on the sentencing judge. Mathenia, 409 F.3d
at 1291. The Booker non-constitutional, or statutory, error occurs when the district
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court sentences a defendant under a mandatory sentencing scheme, even in the
absence of a Sixth Amendment enhancement violation. Id. Because Taylor admitted
the facts underlying the enhancement for obstruction of justice, no constitutional
Booker error occurred when his sentence was enhanced based on those facts. See
United States v. Shelton, 400 F.3d 1325, 1329-30 (11th Cir. 2005) (holding that there
was no Sixth Amendment violation where judicial fact-finding of a drug quantity
greater than the amount alleged in the indictment did not go beyond the facts admitted
by the defendant).
Although the district court did not engage in improper factfinding in imposing
sentence, it did commit Booker statutory error when it sentenced Taylor under a
mandatory scheme. Id. (holding that even without Booker constitutional error in the
district court’s application of the Guidelines, there could be non-constitutional error
where the court applied the Guidelines in a mandatory fashion). Booker statutory
errors are 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.” Mathenia, 409
F.3d at 1292 (citations omitted). “The non-constitutional harmless error standard is
not easy for the government to meet. It is as difficult for the government to meet that
standard as it is for a defendant to meet the third-prong prejudice standard for plain
error review.” Id.
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Based on our careful review of the record, including the sentencing transcript,
we can find no indication of whether or not the district court would have sentenced
Taylor similarly under an advisory scheme. Moreover, Taylor was sentenced to the
low end of the Guidelines range. On this record, “[w]e simply do not know what the
sentencing court would have done had it understood the guidelines to be advisory
rather than mandatory, and had properly considered the factors in 18 U.S.C. §
3553(a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005). Thus, the
government has failed to carry its burden. See id. at 1271-72. Accordingly, we
vacate Taylor’s sentence and remand his case to the district court for resentencing
consistent with Booker.2
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
2
By vacating Taylor’s sentence and remanding for resentencing, we do not mean to imply
that on remand the district court must impose a lesser sentence. Rather, we merely hold that the
government has failed to meet its burden to show that the Booker statutory error of sentencing under
a mandatory Guidelines regime was harmless. We note that the district court correctly calculated
Taylor’s Guidelines range. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005)
(stating that after Booker, district courts must consult the Guidelines and “[t]his consultation
requirement, at a minimum, obliges the district court to calculate correctly the sentencing range
prescribed by the Guidelines”). Thus, consistent with Booker, on remand, the district court is
required to sentence Taylor under an advisory scheme and shall consider the Guidelines range of 41-
51 months’ imprisonment and “other statutory concerns as well, see [18 U.S.C.] § 3553(a)
(Supp.2004).” Booker, 125 S. Ct. at 757.
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