[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-15931 July 27, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00017-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD MOLDEN,
a.k.a. Reginald Troutman,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 27, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of United States v.
Booker, 543 U.S. __, 125 S. Ct. 738, __ L. Ed. 2d __ (2005). We previously
affirmed Appellant’s conviction and 110-month sentence for being a convicted felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g). See United States v.
Molden, Case No. 03-15931, 112 Fed. Appx. 3 (11th Cir. 2004) (Table)
(unpublished) (“Molden I”). The Supreme Court vacated our prior decision and
remanded the case to us for further consideration in light of Booker. We asked for,
and have received, supplemental briefs from the parties on the effect of Booker on
this case.
On reconsideration, we first note that Molden is entitled to preserved error
review because he objected to the sentencing enhancement, based on the semi-
automatic weapon, at sentencing. See United States v. Paz, 405 F.3d 946, 948 (11th
Cir. 2005). Thus, we will review his claim de novo, but will reverse only for a
harmful error. Id. The government bears the burden to prove that a preserved
Booker error was harmless. Id. There are two types of Booker error: (1) a Sixth
Amendment error -- that is, imposing a sentencing enhancement based on judicial
findings that go beyond the facts admitted by the defendant or found by the jury; and
(2) a statutory, or non-constitutional error -- that is, being sentenced under a
mandatory sentencing guidelines scheme that is mandatory. See United States v.
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Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005); see also United States v. Mathenia,
2005 WL 1201455, *2 (11th Cir. May 23, 2005). A Booker constitutional error is
harmless where the government can show, beyond a reasonable doubt, that the error
did not contribute to the defendant’s ultimate sentence. Paz, 405 F.3d at 948-49. A
Booker 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.”’ United States v. Hornaday, 392 F. 3d 1306, 1315 (11th Cir.
2004) (citations omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 762,
763, 66 S. Ct. 1239, 1246, 1248, 90 L. Ed. 1557 (1946)).
According to the PSI, Molden’s base offense level was 20 under U.S.S.G.
§ 2K2.1(a)(4)(A). The probation officer recommended, and the district court
imposed, a four-level upward adjustment, pursuant to § 2K2.1(b)(5), for possessing
a firearm in connection with another felony offense (an aggravated assault on a law
enforcement officer). As the government concedes, in its supplemental letter brief,
this case involves both Booker constitutional error -- the district court enhanced
Molden’s sentence based on a fact not found by the jury or charged in the indictment1
1
The jury found Molden guilty of being a felon in possession of a firearm. At sentencing,
the district court made the additional finding that Molden committed an aggravated assault in the
course of the same incident.
3
-- and Booker non-constitutional, or statutory, error -- after adopting the PSI and its
recommended Guidelines range, the district court treated the resulting range as
mandatory.
Moreover, again as conceded by the government in its supplemental brief, we
cannot tell whether the district court would impose the same sentence, (1) without the
impermissible factfinding (constitutional error), or (2) under the advisory scheme now
mandated by Booker (non-constitutional error). Accordingly, the government has not
attempted to, and thus cannot, satisfy its burden to show harmlessness. Cf. United
States v. Davis,407 F.3d 1269, 1271-72 (11th Cir. 2005) (“We simply do not know
what the sentencing court would have done had it understood the guidelines to be
advisory rather than mandatory, and had properly considered the factors in 18 U.S.C.
§ 3553(a). Therefore, the Government cannot meet its burden of showing that the
mandatory application of the guidelines in violation of Davis’s Sixth Amendment
right was harmless beyond a reasonable doubt.”).
Because the government cannot establish the Booker non-constitutional error
was harmless under the Kotteakos standard, nor can it show the constitutional error
was harmless beyond a reasonable doubt, we vacate Molden’s sentence and remand
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for resentencing consistent with Booker.2 Finally, no reversible error occurred
relating to Molden’s conviction so we reinstate our opinion as to the conviction-
related challenges he previously raised.
OPINION REINSTATED IN PART; SENTENCE VACATED AND
REMANDED.
2
On remand, the district court is required to sentence Molden under an advisory
Guidelines regime, and shall consider the Guidelines range and “other statutory concerns as well,
see [18 U.S.C.] § 3553(a) (Supp.2004).” Booker, 125 S. Ct. at 757. By this order, we do not mean
to imply that on remand the district court must impose a lesser sentence. Rather, we merely hold that
the government has failed to meet its burden to show that the Booker error was harmless. We also
will not attempt to decide now whether a particular sentence below or above the Guidelines range
might be reasonable in this case, as that issue is not before us.
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