United States v. Guillermo Enriquez-Velasquez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 29, 2005
No. 04-15579
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 04-00024-CR-FTM-29-SPC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUILLERMO ENRIQUEZ-VELASQUEZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(August 29, 2005)

Before HULL, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

Guillermo Enriquez-Velasquez appeals his sentence of twenty-seven
months, imposed following his guilty plea for illegal re-entry, in violation of 8

U.S.C. § 1326(b)(2). On appeal, he challenges his sentence in light of United

States v. Booker, 543 U.S. –, 125 S.Ct. 738, 161 L.Ed.2d 621 (2005). Because

Enriquez-Velasquez preserved this issue, we review the sentence de novo and we

reverse only if the error was not harmless. United States v. Paz, 405 F.3d 946, 948

(11th Cir. 2005).

After a review of the record, we hold that there was no constitutional error in

sentencing because enhancement based on prior convictions under U.S.S.G.

§ 2L1.2(b)(1)(B) do not implicate the Sixth Amendment. United States v. Orduno-

Mireles, 405 F.3d 960, 962-63 (11th Cir. 2005).

The government correctly concedes, however, that there was a statutory

error in the imposition of the sentencing guidelines as mandatory. It is the

government’s burden to show that this error was harmless, and the government

admits that it cannot meet its burden in this case. United States v. Mathenia, 409

F.3d 1289, 1291-92 (11th Cir. 2005). The record is devoid of any evidence that

Enriquez-Velasquez’s substantial rights were unaffected by the sentencing scheme.

Accordingly, we VACATE the sentence and grant the government’s motion

to REMAND for resentencing under an advisory guidelines scheme.

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