[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 6, 2005
No. 04-15580 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-00020-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOEL SIMMION PENN,
a.k.a. Oscar Miller,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 6, 2005)
Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Noel Simmion Penn appeals his 70-month sentence for illegal re-entry into
the United States by an aggravated felon, in violation of 8 U.S.C. § 1326(a),
(b)(2). Penn’s indictment stemmed from an undercover operation by the Charlotte
County Sheriff’s Office (“CCSO”), whereby an undercover deputy purchased
cocaine base from Penn’s residence. During the buy, the deputy recognized Penn
as an illegal alien who had previously been deported. The deputy informed the
Bureau of Immigration and Customs Enforcement (“ICE”) that Penn had re-
entered the United States. After ICE agents confirmed that Penn was a deported
alien who had illegally re-entered the United States, CCSO officers arrested Penn
and turned him over to the ICE agents. Penn subsequently pled guilty to illegal re-
entry by an aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2). On
appeal, he maintains that the district court erred, pursuant to United States v.
Booker, 543 U.S. __, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005), in sentencing him
under a mandatory guidelines system.
In Blakely v. Washington, the Supreme Court held that, under the state of
Washington’s mandatory sentencing guidelines system, the imposition of a
sentencing enhancement based upon facts neither admitted by the defendant nor
found by the jury violated the defendant’s Sixth Amendment right to a jury trial.
Blakely, 542 U.S. __, 124 S. Ct. 2531, 2534-38, 159 L.Ed.2d 403 (2004). In
Booker, the Supreme Court extended this holding to the federal Sentencing
Guidelines. Booker, 543 U.S. at , 125 S.Ct. at 760. Based on the Supreme
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Court’s holding, we have stated that there could be two Booker errors: (1) a Sixth
Amendment error – the error of imposing a sentencing enhancement based on
judicial findings that go beyond the facts admitted by the defendant or found by
the jury, and (2) a statutory error – the error of being sentenced under a mandatory
guidelines system. United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir.
2005).
When, as here, a defendant raises, in the district court, an objection to the
mandatory nature of the guidelines, we review for harmless error. United States v.
Mathenia, No. 04-15250, slip op. at 2328 (11th Cir. May 23, 2005). A statutory
Booker 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. at 2328-2329 (citations omitted).
In the case at bar, there was a statutory, Booker error, which the government
concedes, because the district court sentenced Penn under a mandatory guidelines
system. See id. at 1330-31. Moreover, the government has not proven, and
concedes that it may not be able to prove, that the district court’s error did not
affect, or had but a slight affect, on Penn’s sentence. When it sentenced Penn, the
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district court did not state that it would sentence Penn exactly the same if Blakely
applied to the federal Sentencing Guidelines. See Mathenia, slip op. at 2329-2330
(affirming a defendant’s sentence despite a Booker statutory violation because the
district court stated that it would impose the same sentence if the guidelines were
advisory). Accordingly, the error by the district court in sentencing Penn under a
mandatory guidelines system was not harmless and we vacate and remand for re-
sentencing.
VACATE AND REMAND.
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