[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 12, 2005
No. 04-15567
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 00-06024-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY HERNANDEZ,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(July 12, 2005)
Before ANDERSON, BLACK and HULL, Circuit Judges.
PER CURIAM:
Henry Hernandez appeals his sentence imposed after pleading guilty to
possession with intent to distribute cocaine, a violation of 21 U.S.C. § 841(a)(1),
arguing the district court erred under United States v. Booker, 125 S. Ct. 738
(2005). We affirm Hernandez’s sentence.
I. DISCUSSION
Because Hernandez raised a constitutional objection to his sentence based
on Blakely v. Washington, 124 S. Ct. 2531 (2004), before 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). 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.
A quantity of 15 kilograms but less than 50 kilograms of cocaine results in a base
level of 34. See U.S.S.G. § 2D1.1(c)(3). An enhancement for obstruction of
justice is proper where the defendant “escap[es] or attempt[s] to escape from
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custody before trial or sentencing.” See U.S.S.G. § 3C1.1, comment. (n.4(e)). In
the statement of facts supporting his plea agreement, Hernandez admitted that the
offense involved 35.01 kilograms of cocaine and that he fled DEA custody and
remained a fugitive for more than two years. Thus, Hernandez admitted the facts
supporting his base offense level of 34 and the enhancement for obstruction of
justice, and there is no Booker constitutional error.
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.
Shelton, at 1330–31. The district court sentenced Hernandez 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
quotation marks and brackets omitted). The Government has the burden of
showing the error was harmless. Id.
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When imposing Hernandez’s sentence, the district judge stated that “if the
[G]uidelines are advisory or truly [G]uidelines as opposed to a rigid, I will still
impose the same sentence.” Accordingly, the Government has met its burden of
showing the Booker statutory error of sentencing Hernandez under a mandatory
Guidelines scheme was harmless. See United States v. Robles, 11th Cir., 2005, __
F.3d __ (No. 04-13598, May 10, 2005) (holding, under the higher beyond a
reasonable doubt standard used in Booker constitutional error cases, that although
the district court erred in imposing a sentence under a mandatory Guidelines
system based on facts not admitted by the defendant, the error was harmless
beyond a reasonable doubt because “[t]he district court stated its sentence would
be the same even if the [G]uidelines were only advisory”).
II. CONCLUSION
There was no Booker constitutional error because Hernandez admitted the
facts used in imposing his sentence. Additionally, the Government has met its
burden of showing the Booker statutory error of sentencing Hernandez under a
mandatory Guidelines scheme was harmless.
AFFIRMED.
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