[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 25, 2005
No. 04-15728 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-60131-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVERO ROLLE,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 25, 2005)
Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Appellant plead guilty to a four-count indictment charging him with drug
trafficking in violation several federal statutes, 21 U.S.C. §§ 841(a)(1), 846, and
963, and the district court sentenced him to concurrent prison terms of 168
months. He appeals his sentences, contending that the district court acted in
violation of the Sixth Amendment under Blakely v. Washington, 542 U.S. ___,
124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S.
___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005).1 Because appellant raised this Sixth
Amendment issue before the district court, we will set aside his sentences and
remand the case for resentencing unless the error, if any, was harmless. See
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
In Blakely, the Supreme Court held that the imposition of a sentencing
enhancement under the State of Washington’s mandatory sentencing guidelines
system based upon facts neither admitted by the defendant nor found by the jury
infringed the defendant’s Sixth Amendment right to trial by jury. Blakely, 542
U.S. at , 124 S.Ct. at 2534-38. In Booker, the Supreme Court extended this
holding to sentences imposed under the federal sentencing scheme. Booker, 543
U.S. at , 125 S.Ct. at 760. Under Booker, two errors can occur: (1)
constitutional error, which is caused by the court’s imposition of the sentence
called for by the application of mandatory guidelines based on facts neither
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Appellant also challenges the district court’s enhancement of his base offense level under
U.S.S.G. § 2D1.1(b)(2)(B). Because we vacate appellant’s sentences and remand the case for a new
sentencing hearing—in which the court may consider evidence and arguments deemed irrelevant
under the pre-Booker sentencing scheme—we do not address this challenge.
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admitted by the defendant nor found by a jury beyond a reasonable doubt, and (2)
statutory error, which is caused by the court’s imposition of the sentence called for
by the application of mandatory guidelines. United States v. Shelton, 400 F.3d
1325, 1330-31 (11th Cir. 2005).
“Constitutional errors are harmless where the government can show beyond
a reasonable doubt, that the error did not contribute to the defendant’s ultimate
sentence.” United States v. Mathenia, No. 04-15250, slip op. at 2328 (11th Cir.
May 23, 2005) (mandate withheld). Statutory errors are subject to a less
demanding harmless error standard. 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.” Id. at 2328-9 (internal
quotations and citation omitted).
The district court did not commit a constitutional error because appellant
admitted to the probation officer who prepared the presentence investigation
report, and the plea hearing established, the facts the court used to enhance
appellant’s sentences. The court, however, as the government concedes,
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committed a statutory error. The question we must decide, then, is whether the
error was harmless.
In Paz, we said that the harmless error analysis puts the burden on the
government to show that the mandatory (as opposed to the advisory) application of
the guidelines did not contribute to the defendant’s sentence. 405 F. 3d at 948.
We cannot tell from a reading of the record in this case what the district court
would have done had it understood the guidelines to be advisory rather than
mandatory and, moreover, had properly considered the sentencing factors set out
in 18 U.S.C. § 3553(a). The Government therefore cannot show that the
mandatory application of the Guidelines was harmless. We consequently vacate
appellant’s sentences and remand the case for resentencing.
SO ORDERED.
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