[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 21, 2005
No. 04-14608
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 04-00052-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COURTNEY ANTHONY GORDON,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 21, 2005)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Courtney Anthony Gordon appeals his sentence imposed after pleading
guilty to prohibited transactions involving firearms, in violation of 18 U.S.C
§ 924(a)(1)(A). Gordon asserts the district court erred in sentencing him under a
mandatory Guidelines system, in violation of United States v. Booker, 125 S. Ct.
738 (2005). We affirm Gordon’s sentence.
I. DISCUSSION
Because Gordon raised a Blakely v. Washington, 124 S. Ct. 2531 (2004),
objection in 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) (citation omitted). 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).
A. Constitutional Error
There is no Sixth Amendment error under Booker where the defendant has
admitted to facts later used by the district court to enhance a sentence. Id. at 1330.
The district court committed no Sixth Amendment error because Gordon explicitly
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did not object at sentencing to the court’s findings regarding the number of
firearms he purchased. See id. (concluding sentence enhancement based on drug
quantity did not violate Booker where the defendant did not dispute the facts in the
PSI). In fact, when discussing at sentencing the number of firearms Gordon
purchased, Gordon’s counsel explicitly stated he was not objecting to the number
of guns for which the PSI and the court determined Gordon was responsible.
Thus, the court’s determination of the number of firearms Gordon purchased did
not result in a Sixth Amendment violation under Booker.
B. Statutory Error
Even in the absence of a Sixth Amendment violation, Booker error exists
where the district court imposes a sentence under a mandatory Guidelines system.
Id. at 1330–31. The district court sentenced Gordon 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, 11th Cir., 2005, __ F.3d __ (No. 04-15250, May 23, 2005) (internal
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quotation marks and brackets omitted). The Government has the burden of
showing the error was harmless. Id.
During sentencing, the district court referred to its belief of the mandatory
nature of the Guidelines by stating: “I do think I am required to give you a
[G]uideline sentence.” Following sentencing, however, the district court, in its
order denying Gordon’s motion for emergency bond, explicitly stated it: “would
not impose a lower sentence, even given an opportunity to do so following a
remand precipitated by Booker.” Viewing the proceedings in their entirety, the
court’s later statement shows “with fair assurance that the sentence was not
substantially swayed by the error.” Accordingly, the Government has met its
burden of showing the Booker statutory error of sentencing Gordon under a
mandatory Guidelines scheme was harmless.
II. CONCLUSION
There was no Booker constitutional error because Gordon admitted the facts
used in imposing his sentence. Additionally, the Government has met its burden
of showing the Booker statutory error of sentencing Gordon under a mandatory
Guidelines scheme was harmless.
AFFIRMED.
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