[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 26, 2005
No. 04-16504
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 02-00056-CR-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN JEAN LEWIS,
a.k.a. Joel Paul,
a.k.a. Jack,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 26, 2005)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Marvin Jean Lewis appeals his sentence imposed after pleading guilty to one
count of possessing five ounces of crack cocaine with the intent to distribute. We
vacate and remand for resentencing consistent with United States v. Booker, 125 S.
Ct. 738 (2005).
Because Lewis raised a Blakely objection before the district court, we review
his sentence de novo, but will reverse only for harmful error. See United States v.
Paz, 405 F.3d 946, 948 (11th Cir. 2005). We have clarified there are two types of
Booker error: (1) Sixth Amendment, or consitutional, error based upon sentencing
enhancements imposed under a mandatory Guidelines system neither admitted by
the defendant nor submitted to a jury and proven beyond a reasonable doubt; and
(2) statutory error based upon sentencing under a mandatory Guidelines system.
United States v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir. 2005).
We have consistently rejected Lewis’s argument that a district court errs
when it considers prior convictions in sentencing a defendant as a career offender
under the Guidelines. “In Almendarez-Torres v. United States, [118 S. Ct. 1219
(1998),] the Supreme Court “held that the government need not allege in its
indictment and need not prove beyond a reasonable doubt that a defendant had
prior convictions for a district court to use those convictions for purposes of
enhancing a sentence.” United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.
2004).
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Here, the district court concluded Lewis qualified for the career offender
enhancement based upon two of Lewis’s prior convictions. The issue of whether
the crimes qualified as crimes of violence or drug crimes, and thus satisfied the
career offender enhancement requirements, was never submitted to a jury. We
have consistently held that prior convictions are excepted from Booker’s
safeguards regarding facts found by a preponderance of evidence that serve to
enhance a defendant’s sentence under a mandatory Guidelines system. See, e.g.,
United States v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir. 2005) (concluding
the defendant’s Sixth Amendment objection to the imposition of an enhancement
based on a prior crime of violence failed because “[the Supreme] Court’s holding
in Booker . . . is not implicated when a defendant’s sentence is enhanced based on a
prior conviction.”). Thus, there is no Sixth Amendment violation under Booker.
Even in the absence of constitutional error, Booker error exists where the
district court imposes a sentence under a mandatory Guidelines system. Shelton,
400 F.3d at 1330–31. The district court sentenced Lewis under a mandatory
Guidelines system, thus statutory error exists. See id. “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. United States v.
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Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (some internal punctuation
omitted). The burden is on the government to show the error was harmless. Id.
The Government cannot meet its burden. The Government cites that the
district court denied Lewis’s request for a downward departure, instead giving him
a sentence at the low end of the Guideline range, as well as the district judge’s
statement that he believed the sentence was appropriate. However, this is not
enough for us to “say with fair assurance that the sentence was not substantially
swayed by the error” of treating the Guidelines as mandatory. See id. We note the
district court correctly calculated Lewis’s Guidelines range of 262 to 327 months’
imprisonment. See United States v. Crawford, 407 F.3d 1174, 1178–79 (11th Cir.
2005) (stating 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, on remand,
the district court is required to sentence Lewis according to Booker, considering
the Guidelines range of 262 to 327 months’ imprisonment and “other statutory
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concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).” Booker, 125 S. Ct. at
757.1
VACATED AND REMANDED.
1
We do not mean to suggest by our holding that the district court must impose any
particular sentence on remand. Rather, we merely hold the Government did not meet its burden of
showing the Booker statutory error was harmless. We also do not attempt to decide now whether
a particular sentence might be reasonable in this case.
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