[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 04-14469 FILED
U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ July 12, 2005
THOMAS K. KAHN
D.C. Docket No. 03-00291-CR-RWS-1 CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JANINE HARDSON,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 12, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Janine Hardson appeals her 15-month sentence imposed after
pleading guilty to one count of making a false claim against the United States
Treasury, in violation of 18 U.S.C. § 287. On appeal, Hardson argues that in light
of Blakey v. Washington, 542 U.S. ___, 124 S. Ct 2531, 159 L. Ed. 2d 403 (2004),
the district court violated her Fifth and Sixth Amendment rights in enhancing her
sentence based on the determination that the tax loss amount is greater than
$80,000, but less than $200,000, rather than using the tax loss charged in the
indictment and admitted by her of $16,961. Hardson argues that because her
sentence was enhanced based upon a fact not charged in the indictment or
admitted by her, her sentence was enhanced beyond the constitutionally
permissible statutory maximum.
After Hardson filed her appeal, the Supreme Court rendered its decision in
United States v. Booker, 543 U.S. at ___, 125 S. Ct. 738, 160 L. Ed. 2d 621
(2005). In the resulting opinions, the Supreme Court held that “‘the 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. Mahernia, No. 04-15250, slip op. at 2328 (11th Cir. May 23,
2005) (quoting United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)
(citing United States v. Booker, 543 U.S. ___, 125 S.C. 738, 749-56 (2005)).
2
We have recognized, based on this holding, that the district courts could
have made both a constitutional and a statutory error in sentencing defendants pre-
Booker. Mahernia, No. 04-15250, slip op. at 2328. “The constitutional error is
the use of extra-verdict enhancements to reach a guidelines result that is binding
on the sentencing judge.” Id. “The statutory error occurs when the district court
sentences a defendant under a mandatory guidelines scheme, even in the absence
of a Sixth Amendment enhancement violation.” Id. (internal quotation omitted).
Hardson properly preserved her Booker error claim by citing Blakey in her
pre-sentencing motion to declare the Federal Sentencing Guidelines
unconstitutional and in her arguments at the sentencing hearing. See United States
v. Mahernia, No. 04-15250, slip op. at 2328 (11th Cir. May 23, 2005) (holding
that appellant properly preserved Booker error claim by citing Blakey in his
written objection to the PSI and reminding the court at sentencing of his Blakey
objection). We review a defendant’s preserved Blakey/Booker claim de novo but
will reverse and remand only for harmful error. United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005).
There are two harmless error standards, one applies to Booker constitutional
errors, the other to Booker statutory errors. Mahernia, No. 04-15250, slip op. at
2328. “[C]onstitutional errors are harmless where the government can show,
3
“beyond a reasonable doubt, that the error did not contribute to the defendant’s
ultimate sentence.” Id. On the other hand, Booker statutory errors are subject to
the less demanding test that is applicable to non-constitutional errors, that is,
“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.” Id. at
2328-29 (internal quotations omitted).
This case concerns both constitutional error and Booker statutory error.
Hardson disputed any finding that the tax loss was greater than the amount
charged in the indictment and admitted by her of $16,961. The district court
applied a four-level enhancement, pursuant to U.S.S.G. § 2T4.1, because it
determined that the actual amount of tax loss was more than $80,000 and less than
$200,000. Because Hardson disputed a loss amount greater than $16,961, the
enhancement was made based on facts neither proven to a jury nor admitted by
Hardson, resulting in a Sixth Amendment violation of her rights. See Paz, 405
F.3d at 948 (noting that “under Booker, the Sixth Amendment right to trial by jury
is violated where under a mandatory guidelines system a sentence is increased
because of enhancement based on facts found by the judge that were neither
admitted by the defendant nor found by the jury.”) (quotation omitted).
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We must disregard error, however, if it is clear, beyond a reasonable doubt,
that the error did not contribute to the sentence imposed. Id. at 948-49. On this
record, we cannot hold the error to be harmless. It is evident from the sentencing
transcript that, if the district court had not been bound by the sentencing
guidelines, Hardson’s sentence would have been shorter. Hardson was sentenced
to 15 months imprisonment, but the district court imposed an alternative 10-month
sentence if the guidelines were found to not apply. In Paz, we held that the
government could not meet its burden to show harmless error where the district
court stated that it would have imposed a shorter sentence if the guidelines were
found to be unconstitutional. Paz, 405 F.3d at 949. Like Paz, the constitutional
error in the instant case was not harmless beyond a reasonable doubt. Thus, we
vacate the sentence and remand for resentencing.1
VACATED AND REMANDED.
1
Hardson has abandoned any claim with respect to the guidelines range. Thus, we agree with
the government that on remand the court should not reopen the calculations underlying the range.
See United States v. Mesa, 247 F.3d 1165, 1171 n.6 (11th Cir. 2001) (noting that by failing to raise
an issue during first appeal, the defendant abandoned that argument on remand). United States v.
Fiallo-Jacome, 874 F.2d 1479, 1481-83 (11th Cir. 1989) (refusing to consider an issue where
criminal defendant failed to raise an issue on the defendant’s first appeal, and later tried to raise the
issue in a subsequent appeal, stating that the defendant would not be given “two bites at the appellate
apple”). The court, however, is not of course bound to sentence within this range.
5