[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-14922
U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ July 11, 2005
THOMAS K. KAHN
D.C. Docket No. 04-80022-CR-KLR CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEENAN HOLMES,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(July 11, 2005)
Before BIRCH, BARKETT, and MARCUS, Circuit Judges.
PER CURIAM:
Kennan Holmes appeals his total 240-month sentence, imposed after he pled
guilty to bank robbery by force and/or violence, in violation of 18 U.S.C. §§ 2113(a),
2113(d), and 2; conspiracy to commit bank robbery while armed, in violation of 18
U.S.C. §§ 2113(a), 2113(d), and 371; and possession of a firearm during the
commission of a felony, in violation of 18 U.S.C. §§ 924(c) and 2. We affirm.
According to the PSI, Holmes’s Guidelines range, based on an adjusted offense
level of 31 and a criminal history category VI, was 262-327 months’ imprisonment.
At the sentencing hearing, the government moved for a downward departure, under
U.S.S.G. § 5K1.1, based on Holmes’s substantial assistance and recommended that
he be sentenced to a 200-month term of imprisonment. The district court granted the
government’s motion, but stated that it would mitigate the reduction in light of
Holmes’s criminal history and impose a 240-month term of imprisonment.
On appeal, Holmes argues that because he was sentenced under a mandatory
Guidelines scheme that required the district court to consider only the career-offender
sentencing range in determining the departure amount, he was sentenced based on an
erroneous application of the Guidelines, in violation of United States v. Booker, 543
U.S. ----, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Because Holmes raised his
Booker objection in the district court, we review this claim de novo, but will reverse
only if any error was harmful. See United States v. Paz, 405 F.3d 946, 948 (11th Cir.
2005).
2
We have stated that two types of Booker error exist: constitutional error and
non-constitutional, or statutory, error. See United States v. Mathenia, 2005 WL
1201455, *2 (11th Cir. May 23, 2005). The latter type of error-- the kind asserted
here -- is subject to a less demanding harmless-error standard than that for
constitutional errors. 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. (internal quotations and citation omitted). Thus,
in cases involving preserved Booker non-constitutional error, the government must
show that the mandatory, as opposed to the advisory, application of the guidelines did
not contribute to the defendant’s sentence. Paz, 405 F.3d at 948-49 (holding that the
government could not meet its burden under harmless error analysis because the
record indicated that had the guidelines been advisory, defendant’s sentence would
have been shorter); see also United States v. Gallegos-Aguero, --- F.3d ---, 2005
WL1160635, *2 (11th Cir. May 18, 2005) (“Non-constitutional error is harmless
when it does not affect the substantial rights of the parties” (citing 28 U.S.C. §
2111)).
3
After thorough review of all relevant parts of the record, including the
sentencing transcript and the presentence investigation report, and careful
consideration of the parties’ briefs, we conclude that the district court’s imposition
of sentence, based on a mandatory application of the Guidelines, constituted
harmless error. Pursuant to the government’s § 5K1.1 motion, the district court
reduced Holmes’s sentence to 240 months’ imprisonment, specifically stating that it
had “to temper” the government’s requested reduction for a 200-month sentence to
take into account Holmes’s criminal history, which included many crimes of violence.
Moreover, in response to Holmes’s Booker objection, the district court stated that it
believed that the sentence was “a fair one,” notwithstanding the Guidelines.1 Indeed,
the court went on to note: “I will tell you that, if freed from the guidelines, it’s not
clear to me that the sentence would be any less. In fact, I think there’s a chance it
would have been higher.” On this record, it is clear that any Booker error resulting
from the district court’s application of the Guidelines in a mandatory fashion was
harmless as the error did not affect the sentence, or had but a slight effect.
Accordingly, we affirm.
AFFIRMED.
1
Thus, this is not a case where the government has tried to satisfy its burden to show
harmlessness by relying only on the district court’s grant of a § 5K1,1 reduction. Compare United
States v. Davis, --- F.3d ----, 2005 WL 1033422 (11th Cir. May 4, 2005).
4
5