United States v. Marvin Jean Lewis

[DO NOT PUBLISH]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).

2
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.