United States v. Dorian D. Cotledge

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 10, 2005
No. 04-15648 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 03-80143-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DORIAN D. COTLEDGE,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 10, 2005)

Before TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

Dorian Cotledge was charged by superseding indictment with one count of

making a false statement on ATF form 4473 in connection with the purchase of a
firearm, in violation of 18 U.S.C. § 924(a)(1)(A), and one count of making a false

statement to a federally licensed firearms dealer in order to obtain a firearm, in

violation of 18 U.S.C. § 922(a)(6). He pleaded guilty without a written plea

agreement.

At the change-of-plea hearing, Cotledge admitted that he had attempted to

purchase a firearm by completing and signing ATF form 4473, on which he denied

that he had any prior felony convictions. The government listed Cotledge’s prior

convictions, including a 1990 conviction for aggravated battery and armed

robbery, 1993 convictions for being a felon in possession of a firearm and

attempted murder, and a 1996 conviction for a controlled substance offense. In

pleading guilty, Cotledge limited his admission to the elements of the offense and

did not stipulate to the exact prior convictions because he did not want to face a

greater offense level at sentencing in light of Blakely v. Washington, 542 U.S. 296,

124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), although he acknowledged that

Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d

350 (1998) appeared to remain good law after Blakely.

The probation officer prepared a presentence investigation report, assigning

a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) based on Cotledge’s prior

convictions, with a 3-level reduction for acceptance of responsibility. The

2
probation officer detailed Cotledge’s criminal history which the probation officer

calculated to be a category V. With a total offense level of 21 and a criminal

history category V, Cotledge’s guidelines range was 70 to 87 months

imprisonment, but count one carried a statutory maximum sentence of 60 months

imprisonment.

Cotledge objected to the PSI, arguing under Blakely that his sentences

should not be enhanced based on prior convictions not included in the indictment

or admitted by him. At sentencing, the court overruled the objection based on

Almendarez-Torres, adopted the PSI, and sentenced Cotledge to concurrent 60-

and 70-month terms of imprisonment, stating that this sentence was “adequate.”1

Cotledge now appeals challenging his sentences as erroneous in light of United

States v. Booker, 543 U.S. –, 125 S.Ct. 738, 161 L.Ed.2d 621 (2005).

In Booker,2 the Supreme Court held that Blakely applied to the federal

sentencing guidelines and that the Sixth Amendment required that any fact that

increased a defendant’s sentence beyond the maximum sentence authorized by the

facts established by a plea or a jury verdict must be admitted by the defendant or

proven to a jury beyond a reasonable doubt. 125 S.Ct. 738. This court has

1
The court further rejected imposing alternate sentences should the U.S. Supreme Court
apply Blakely to the federal guidelines.
2
This court now reviews Blakley arguments under Booker.

3
explained that a Booker error also results from the district court’s use of a

mandatory guidelines scheme, even in the absence of any constitutional error.

United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

Because Cotledge preserved his Booker challenge in the district court, we

review the sentences de novo, but will reverse only if the error was not harmless.

United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). The burden is on the

government to show that the error was harmless. There are two standards for the

harmless error test: constitutional harmless error, which occurs when the error did

not affect the defendant’s substantial rights,3 and statutory harmless error, which is

a less demanding standard but requires the government to show that, viewing the

proceedings in their entirety, the error had no effect or a very slight effect on the

sentence. United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005).

Here, there was no constitutional error. An enhancement based on a prior

conviction, even if not admitted by the defendant, does not represent a

constitutional Booker error.4 United States v. Orduno-Mireles, 405 F.3d 960, 962-

63 (11th Cir. 2005); United States v. Camacho-Ibarquen, 404 F.3d 1283, 1290

3
In other words, “where it is clear ‘beyond a reasonable doubt that the error complained of
did not contribute to the [sentence] obtained.’” Mathenia, 409 F.3d at 1291-92.
4
Cotledge did not raise any factual objections to the PSI, which listed his extensive criminal
history. United States v. Burge, 407 F.3d 1183 (11th Cir. 2005) (noting that the defendant admitted
the facts regarding his relevant conduct for Booker purposes when he abandoned his objections to
various factual statements in the PSI); United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005).

4
(11th Cir. 2005). The Supreme Court’s decision in Shepard v. United States, 125

S.Ct. 1254 (2005), does not alter this conclusion. United States v. Gallegos-

Aguero, 409 F.3d 1274, 1276-77 (11th Cir. 2005); Camacho-Ibarquen, 404 F.3d at

1290 n.3.

The government correctly concedes, however, that there was statutory error

in the imposition of the guidelines as mandatory and that it cannot show that the

error was harmless. The record is devoid of any evidence, other than the court’s

statement that a sentence at the low end of the guidelines was “adequate,” to show

that Cotledge’s substantial rights were not affected by the mandatory application of

the guidelines.5 Where it is unclear whether the court would have imposed the

same sentence but for the mandatory guidelines, the government cannot show that

the error was harmless. United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.

2005). Moreover, a sentence at the low end of the guidelines range, without more,

does not establish that the error was harmless. See United States v. Fields, 408

F.3d 1356 (11th Cir. 2005) (concluding, under plain error review, that a sentence at

the low end of the guidelines was not sufficient to show that the mandatory

application of the guidelines affected the defendant’s substantial rights). Because

5
Notably, even after Booker, the court is still required to calculate and consider the
guidelines range in determining an appropriate sentence. United States v. Crawford, 407 F.3d 1174
(11th Cir. 2005).

5
the government cannot meet its burden to show harmless error, we VACATE and

REMAND for resentencing under an advisory guidelines scheme.