United States v. Ismael Hernandez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-14863
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

ISMAEL HERNANDEZ,

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:
Ismael Hernandez 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. In his pre-

United States v. Booker, 125 S. Ct. 738 (2005) brief, Hernandez argues the district

court violated Blakely v. Washington, 124 S. Ct. 2531 (2004), 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 in his plea colloquy. We vacate and

remand for resentencing consistent with Booker.

Because Hernandez 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).

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,

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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).

Hernandez admitted to the amount of loss of $400,000 to $1,000,000 that

formed basis for the 14-point enhancement. Hernandez never contested that he

was responsible for this amount of loss because (1) he did not object to the factual

statements in the PSI regarding the amount of loss, and (2) he specifically

informed the court that “[we] are not litigating the facts as to whether there was $1

million in the truck or $1 billion in the truck or a penny in the truck.” Accordingly,

because Hernandez admitted to the facts that enhanced his sentence, there is no

Sixth Amendment violation under Booker. Furthermore, Hernandez 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

claim in the district court that he was not challenging the facts.

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 Hernandez 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

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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 concedes that it 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 Hernandez, we vacate and remand for resentencing consistent

with Booker. We note the district court correctly calculated Hernandez’s

Guidelines range of 24 to 30 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 Hernandez according to Booker, considering the Guidelines range of 24 to

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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.