[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15933 July 07, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00282-CR-CAP-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLENE ALVARADO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 7, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Marlene Alvarado appeals her 46-month sentence for illegally reentering the
United States after being deported, in violation of 8 U.S.C. § 1326(a) and (b)(2).
On appeal, Alvarado argues that, in light of United States v. Booker, 543 U.S. ___,
125 S. Ct. 738 (2005), the district court erred by imposing a 16-level enhancement
to her offense level under the Federal Sentencing Guidelines, pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(i), based on a finding that she previously had been deported after
a conviction for a felony that is a drug trafficking offense, when this fact was not
charged in the indictment, admitted to by her, or proven to a jury beyond a
reasonable doubt. Alvarado also argues that the district court erred by sentencing
her under a mandatory guidelines system.
We have explained that there are two types of Booker error: (1) a Sixth
Amendment error–that is, imposing a sentencing enhancement based on judicial
findings that go beyond the facts admitted by the defendant or found by the jury;
and (2) statutory error–being sentenced under a sentencing guidelines scheme that
is mandatory. United States v. Shelton, 400 F.3d 1325, 1330–31 (11th Cir. 2005).
I. Sixth Amendment Error
Because Alvarado raised a constitutional objection to her sentence before
the district court based on Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531
(2004), we review the constitutional issue de novo, but will reverse only for a
harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
Constitutional error must be disregarded if the error is harmless beyond a
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reasonable doubt. United States v. Candelario, 240 F.3d 1300, 1307 (11th Cir.
2001). In the instant case, we find no constitutional Booker error, so we need not
reach whether the error is harmless beyond a reasonable doubt.
In Booker, the Supreme Court “left undisturbed its holding in
[Almendarez-Torres v. United States, 523 U.S. 224, 227, 118 S. Ct. 1219, 1233
(1998)], that recidivism is not a separate element of an offense that the
government is required to prove beyond a reasonable doubt.” United States v.
Orduno-Mireles, 405 F.3d 960, 962 (11th Cir. 2005). Moreover, the Court
reaffirmed Apprendi’s holding 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.” Id. Accordingly, in
Orduno-Mireles we observed that “the Court’s holding in Booker . . . is not
implicated when a defendant’s sentence is enhanced based on a prior conviction.”
Id.
To the extent that the Supreme Court’s recent decision in Shepard arguably
undermined Almendarez-Torres, that decision does not undermine our outcome
here. See Shepard v. United States, __ U.S. __, 125 S. Ct. 1254 (2005). Alvarado
did not dispute her prior conviction. Accordingly, the sentencing court did not
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resolve disputed facts, but based its sentence on admitted facts. See Shepard, 125
S. Ct. at 1263; see also United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.
2005); Shelton, 400 F.3d at 1330. Therefore, in this case, we are not presented
with an opportunity to determine the implications and reach of Shepard.
Because Almendarez-Torres remains good law after Booker, and because
Alvarado’s sentence was enhanced only based on the facts of her prior conviction,
we hold that there was no Sixth Amendment violation when the district court
enhanced Alvarado’s sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). See
Orduno-Mireles, 405 F.3d at 962.
II. Statutory Error
Although the district court did not violate the Sixth Amendment in
sentencing Alvarado, it did commit a statutory Booker error. Due to the nature of
the Supreme Court’s Booker remedy, we have concluded that a district court has
committed Booker error whenever it sentences a defendant under a mandatory
guidelines scheme, even in the absence of a Sixth Amendment error. Shelton, 400
F.3d at 1330–31.
When an error is nonconstitutional, it is harmless if it does not affect the
substantial rights of the parties. See 28 U.S.C. § 2111; United States v. Guzman,
167 F.3d 1350, 1353 (11th Cir. 1999). “[A] nonconstitutional error requires
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reversal only if it resulted in actual prejudice because it had substantial and
injurious effect.” Guzman, 167 F.3d at 1353 (internal quotations and citation
omitted). The government bears the burden of showing that the error did not
affect Alvarado’s substantial rights. United States v. Fern, 155 F.3d 1318, 1327
(11th Cir. 1998). “The non-constitutional harmless error standard is not easy for
the government to meet.” United States v. Mathenia, __F.3d__, No. 04-15250,
2005 WL 1201455 at *2 (11th Cir. May 23, 2005). Here, the government has
failed to meet its burden.
First, the government concedes in its brief that there was a statutory error,
and therefore, does not even attempt to meet its burden to show that the error was
harmless. Second, a review of the record reveals no indication of what sentence
the district court would have imposed had it known the Guidelines were advisory
only. Accordingly, because “[w]e simply do not know what the sentencing court
would have done,” the government has not met its burden to show that the error
was harmless, we vacate Alvarado’s sentence and remand to the district court for
resentencing. See United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005).
For the foregoing reasons, we VACATE Alvarado’s sentence and
REMAND to the district court for re-sentencing consistent with the Supreme
Court’s decision in Booker.
SENTENCE VACATED and REMANDED.
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