[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 04-16237
Non-Argument Calendar FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 20, 2005
D.C. Docket No. 03-00348-CR-J-32-MCRTHOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE ANTHONY MOORE,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(July 20, 2005)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Wayne Anthony Moore appeals his sentence of 360 months’ imprisonment
for distribution and possession with intent to distribute cocaine base, in violation
of 21 U.S.C. sections 841(a)(1) & (b)(1)(B). Moore argues that the district court
erred under United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), when it
sentenced him under mandatory guidelines as a career offender based on facts not
proved to a jury beyond a reasonable doubt. Because the government did not
establish that the statutory error under Booker was harmless, we vacate and
remand for resentencing.
“[A] constitutional objection that is timely, . . . receives the benefit of
preserved error review.” United States v. Candelario, 240 F.3d 1300, 1305 (11th
Cir. 2001). Where, as here, an error was preserved below, we review de novo and,
“if error is found, it is generally subject to the harmless error analysis of
Fed.R.Crim.P. 52(a).” Id. at 1303 n.3. Rule 52(a) states that “[a]ny error, defect,
irregularity, or variance that does not affect substantial rights must be
disregarded.” Fed. R. Crim. P. 52(a).
In Booker, the Supreme Court held that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.”
Booker, 543 U.S. at ___, 125 S. Ct. at 756. We have explained that there are two
kinds of sentencing errors based on Booker. The first is constitutional error: “the
2
Sixth Amendment right to trial by jury is violated where under a mandatory
guidelines system a sentence is increased because of an enhancement based on
facts found by the judge that were neither admitted by the defendant nor found by
the jury.” United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005)
(citations omitted). The second is statutory error: “[a]s a result of Booker’s
remedial holding, Booker error exists when the district court misapplies the
Guidelines by considering them as binding as opposed to advisory.” United States
v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
Each kind of Booker error requires a different standard of review to
determine whether the error was harmless. Booker constitutional error is harmless
when the government can show, beyond a reasonable doubt, that error did not
contribute to the ultimate sentence. Booker statutory error is subject to a less
demanding test. See United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir.
2005). A statutory error is harmless if, viewing the proceedings in their entirety,
the error did not affect the sentence or had only a “very slight effect.” Id. If the
sentence was not “substantially swayed” by the error, then the sentence is due to
be affirmed in spite of the error. Id. The harmless error standard for statutory
errors is not easy for the government to meet, and is as difficult for the
government to meet as the third-prong prejudice standard that a defendant must
3
meet under plain error review. Id. In other words, the government has the burden
to show that the error did not affect the defendant’s substantial rights. See id.
This appeal requires that we apply each of these standards. Moore raised in
the district court both constitutional error and statutory error. We address each in
turn.
The district court did not commit constitutional error under Booker when it
applied the career offender enhancement based on Moore’s previous convictions.
In Almendarez-Torres v. United States, 523 U.S. 224 118 S. Ct. 1219 (1997), the
Supreme Court concluded that recidivism is not a separate element of an offense
that the government is required to prove beyond a reasonable doubt. 523 U.S. at
247, 118 S. Ct. at 1232-33. Booker specifically excepted prior convictions from
its holding. See Booker, 543 U.S. at __, 125 S. Ct. at 756. We have repeatedly
determined that the Supreme Court has left its holding in Almendarez-Torres
undisturbed, and that Almendarez-Torres remains good law and binding precedent
until the Supreme Court decides otherwise. See United States v. Orduno-Mireles,
405 F.3d 960, 962-63 (11th Cir. 2005); Shelton, 400 F.3d at 1329.
Moore’s related argument that the district court violated his right against
self-incrimination under the Fifth Amendment is frivolous. At the sentencing
hearing, Moore admitted his previous convictions and the district court
4
alternatively relied upon the judgments regarding those convictions filed by the
government. Moore did not even attempt to invoke his privilege against self-
incrimination.
Although there was no constitutional error, the district court erred when it
sentenced Moore under a mandatory guidelines system. See Shelton, 400 F.3d at
1330-31. Accordingly, we must determine whether the government showed that
the error did not affect the sentence or had only a “very slight effect.”
Mathenia,409 F.3d at 1292. We conclude that the government has not met that
heavy burden. There is nothing in the record to suggest that had the district court
known the guidelines were advisory, the district court would have imposed the
same sentence. We, therefore, vacate and remand for resentencing consistent with
Booker.
VACATED AND REMANDED.
5