[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 15, 2005
No. 04-16200 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20021-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN MANUEL BOLLEA,
Defendant-Appellant.
__________________
Appeal from the United States District Court
for the Southern District of Florida
__________________
(August 15, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant John Manuel Bollea1 appeals his 6-month sentence imposed after
he pled guilty for attempting to travel in foreign commerce and engage in a
commercial sex act with a minor child, in violation of 18 U.S.C. §§ 2423 (c) and
(e). On appeal, Bollea argues that in light of Apprendi/Blakely/Booker his sentence
is unconstitutional because the sentence was rendered under mandatory guidelines,
while the district court expressed reservations over the sentence, and because the
court applied an enhancement that was not found by a jury nor pled to by Bollea.
In Apprendi v. New Jersey, the United States Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S. Ct. 2348, 2363-64
147 L. Ed. 2d 435 (2000). In Blakely v. Washington, the Supreme Court reversed
an upward departure and held that the relevant “‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. 296, __,
124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403 (2004).
In Booker, a case involving Blakely’s application to the guidelines, the
1
Bollea is currently out on bond awaiting this appeal. The district court originally set the
surrender date for May 27, 2005. Bollea filed a motion to extend the surrender date. The motion
was granted on April 6, 2005, extending the surrender date to September 23, 2005. We grant the
motion to expedite the appeal and issue this opinion.
2
Supreme Court held that “the Sixth Amendment as construed in Blakely does apply
to the Sentencing Guidelines.” 543 U.S.__, 125 S. Ct. 738, 746, 160 L. Ed. 2d
621 (2005). The Court also held that, in light of its holding that Blakely does apply
to the guidelines, 18 U.S.C. § 3553(b)(1) (requiring a sentence within the guideline
range, absent a departure) and 18 U.S.C. § 3742(e) (establishing standards of
review on appeal) must be severed and excised from the guidelines, rendering the
guidelines merely advisory. Id. at __, 125 S.Ct. at 756-57. The Court held,
however, that district courts still must consider the guidelines. Id. at __, 125 S.Ct.
at 757, 764.
In reviewing Booker cases, we must first determine whether there is a
preserved objection. See United States v. Dowling, 403 F.3d 1242, 1246 (11th
Cir. 2005). In Dowling, we held that a defendant must make an objection (1) to
Apprendi or its progeny, or (2) to challenge the district court’s finding of
sentencing facts that were not found by a jury or pled to by a defendant. Id. Here,
at sentencing, Bollea objected to the application of an enhancement that was
neither pleaded to nor alleged in the indictment, and, therefore, he has properly
preserved his objection. Where a defendant timely raised a Blakely objection in the
district court, we review the claim on appeal de novo, but reverse only for harmful
error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
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The standard for harmless error depends on the type of error that is alleged,
i.e. whether the district court committed constitutional error or statutory error.
United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). A constitutional
error occurs when there is an extra-verdict enhancement that results in a guidelines
range that is binding on the district court. Id. at 1291. A statutory violation occurs
when, in the absence of a Sixth Amendment enhancement violation, the district
court sentences under a mandatory guidelines scheme. Id. We have held that
“constitutional errors are harmless where the government can show, beyond a
reasonable doubt, that the alleged error did not contribute to the defendant’s
ultimate sentence,” and a statutory error is harmless if it is determined that the
proceedings in their entirety did not affect the sentence “or had but a very slight
effect.” Id. at 1291-92 (quoting United States v. Hornaday, 392 F.3d 1306, 1315
(11th Cir. 2004)).
Here, Bollea made an objection to an extra-verdict enhancement that was
made because the offense was a violation of chapter 117 of Title 18, United States
Code.2 However, the sections that Bollea pled guilty to are contained within
2
Bollea contends that the three-level enhancement was based on a violation of a particular chapter
of the Code, and also contends that this violation was neither alleged in the indictment nor did Bollea plea
guilty to that violation. U.S.S.G. § 2A3.4(b)(6) (2003) allows for a three-level increase when the
violation is of chapter 117 of Title 18, United States Code. Bollea pled guilty to violating 18 U.S.C.
§ 2423(e), for attempting to violate § 2423(c). These subsections are contained in chapter 117, which is
entitled “Transportation for Illegal Sexual Activity and Related Crimes.”
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chapter 117, and Bollea does not dispute this fact. See Shelton, 400 F.3d at 1329
(holding that failure to make a valid objection to the underlying facts in the PSI or
at sentencing is an admission for Booker purposes). Therefore, Bollea has not
made a valid Sixth Amendment claim. Nevertheless, the court applied the
enhancement under mandatory guidelines. See Mathenia, 409 F.3d at 1291
(holding that a statutory violation occurs when a defendant is sentenced under
mandatory guidelines, even in the absence of a Sixth Amendment violation). Thus,
we will apply the Booker statutory harmless error standard in determining whether
the error was harmless.
In Mathenia, the defendant pled guilty to knowingly possessing and
distributing child pornography. 409 F.3d at 1290. At sentencing the district court
imposed a total offense level of twenty-nine and a criminal history category of I.
Id. The district court sentenced defendant to 96 months in prison, and stated that
the sentence would be the same even if the guidelines were not mandatory. Id. We
held that the district court’s application of the guidelines in a mandatory scheme
did not affect the sentence, or had but a slight effect, because the district court
stated that the sentence would be the same if the guidelines were advisory. Id. at
1292-93.
Here, the district court made a materially distinguishable comment. In the
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course of Bollea’s Blakely objection and sentencing, the district court said, “I am
stating that there is a possibility that I would impose a sentence that did not require
incarceration . . . if the Guidelines were not applicable, and if I had complete and
unfettered sentencing authority as it existed before the Guidelines came into
being.” The district court made a statement that, but for the mandatory nature of
the guidelines, it would consider a lesser sentence of incarceration or no
incarceration at all. Therefore, we conclude from the record that the district court
committed a harmful error that had more than a slight effect on Bollea’s sentence.
Accordingly, we vacate Bollea’s sentence and remand this case for resentencing.
VACATED AND REMANDED.
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