[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-15242
U .S . COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ August 12, 2005
THOMAS K. KAHN
D. C. Docket No. 04-20310-CR-MGC CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM VAZQUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 12, 2005)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
William Vazquez appeals his sentence imposed after pleading guilty to one
count of conspiracy to steal goods in excess of $1,000, which were part of an
interstate freight shipment, in violation of 18 U.S.C. §§ 371, 659. Vazquez asserts
the district court violated Blakely v. Washington, 124 S. Ct. 2531 (2004), and
United States v. Booker, 125 S. Ct. 738 (2005), by sentencing him based on a
finding of a loss amount in excess of $400,000, which was neither reflected in the
indictment, nor admitted by him. Vazquez further contends that pursuant to United
States v. Shelton, 400 F.3d 1325, 1330–31 (11th Cir. 2005), the district court erred
by sentencing him under the mandatory scheme of the sentencing guidelines. We
vacate and remand for resentencing consistent with Booker.
Because Vazquez 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 constitutional, 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).
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U.S.S.G. § 2B1.1(b)(1)(H) provides if the amount of loss exceeded more
than $400,000, but less that $1,000,000, a base offense level should be increased
by 14 points. Where a defendant admits to the facts that enhanced his sentence,
there is no Sixth Amendment violation under Booker. See Shelton, 400 F.3d at
1330; see also United States v. Burge, 407 F.3d 1183, 1191 (11th Cir. 2005)
(withdrawal of factual PSI objection constitutes admission).
In this case, constitutional error did not occur because Vazquez admitted to
the amount of loss of $400,000 but less than $1,000,000 that formed basis for the
14-point enhancement. In fact, Vazquez never has contested he was responsible
for this amount of loss because: (1) he did not object to the factual statements in
the Presentence Investigation Report (PSI) regarding the amount of loss, and (2) he
adopted as true the facts contained in the PSI, which specifically found the
intended theft amount was at least $500,000, by stating in his “Position of Parties
with Respect to Sentencing Factors” that there were no disputed facts.
Accordingly, because Vazquez admitted to the facts that enhanced his sentence,
there is no Sixth Amendment violation under Booker. Furthermore, Vazquez never
challenged the sufficiency of the evidence supporting the valuation in the district
court and raises the sufficiency argument for the first time on appeal, despite his
waiver of the issue in the district court.
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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 Vazquez 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.
Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (internal quotation marks and
brackets omitted). The burden is on the government to show the error was
harmless. Id.
The Government cannot meet its burden. The district court imposed a
sentence at the low end of the applicable guidelines range and announced an
alternative sentence of six months’ imprisonment in case the Supreme Court ruled
that Blakely was applicable to the Guidelines. Accordingly, because there is
evidence in the record the district court would have imposed a lesser sentence on
Vazquez, we vacate and remand for resentencing consistent with Booker. We note
the district court correctly calculated Vazquez’s Guidelines range of 24 to 30
months’ imprisonment. See United States v. Crawford, 407 F.3d 1174, 1178–79
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(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 Vazquez according to Booker,
considering the Guidelines range of 24 to 30 months’ imprisonment and “other
statutory 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 imply by our holding that on remand the district court must impose
a lesser sentence. Rather, we merely hold the Government has not met its burden to show the
statutory error was harmless. We also will not attempt to decide now whether particular
sentences below the Guidelines range might be reasonable in this case.
5