[DO NOT PUBLISH]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. 04-14263 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60077-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEE FENIMORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 6, 2005)
Before ANDERSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
David Lee Fenimore appeals his 24-month sentence for (1) knowingly
receiving and possessing an unregistered firearm, in violation of 26 U.S.C.
§ 5861(d); (2) knowingly possessing a firearm which had its serial number
removed, obliterated, or altered, and which had been shipped or transported in
interstate commerce, in violation of 18 U.S.C. § 922(k); (3) knowingly making and
altering a firearm, in violation of 26 U.S.C. § 5861(f); and (4) knowingly receiving
and possessing a unregistered firearm, in violation of 26 U.S.C. § 5861(d).
Because the government failed to demonstrate that the district court committed a
harmless Booker error, we VACATE and REMAND for resentencing.
I. BACKGROUND
In 2004, a federal grand jury indicted Fenimore on four counts of firearm
violations. Pursuant to a plea agreement, Fenimore pled guilty to (1) knowingly
receiving, possessing , and transferring an unregistered silencer, in violation of 26
U.S.C. § 5861(d), (e), and § 5871, and 18 U.S.C. § 2; (2) knowingly possessing a
semiautomatic UZI 9-millimeter rifle, which had its serial number removed,
obliterated, or altered, and which had been shipped or transported in interstate or
foreign commerce, in violation of 18 U.S.C. § 922(k); (3) knowingly making a rifle
having a barrel less than 16 inches in length, in violation of 26 U.S.C. § 5861(f),
5845(a), and 5871; and (4) knowingly receiving and possessing an unregistered
short barrel rifle, in violation of 26 U.S.C. § 5861(d), § 5871, and 18 U.S.C. § 2.
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The presentence investigation report indicated that Fenimore’s guideline
sentencing range was 24 to 30 months of imprisonment based on a total offense
level of 17 and a criminal history category of I.
Just prior to the sentencing hearing, Fenimore filed a motion to declare the
federal sentencing guidelines unconstitutional under Blakely v. Washington, 542
U.S. ____, 124 S. Ct. 2531 (2004), and the Fifth and Sixth Amendments. During
the sentencing hearing, Fenimore’s counsel argued that the guidelines were
unconstitutional but conceded that there was “absolutely nothing outside of the
indictment . . . that is going to be relied upon by the [district] [c]ourt for sentencing
purposes.” R2 at 5. The district court concluded that, under the state of the law at
that time, Apprendi/Blakely did not apply to the federal sentencing guidelines and
overruled Fenimore’s objection. The district court then sentenced Fenimore to 24
months of imprisonment for each count, to run concurrently. Although the district
court sentenced Fenimore to the low end of the applicable guideline range, the
district judge did not indicate whether he would have given Fenimore a lower
sentence had he not been constrained by the guidelines. Fenimore renewed his
objections to his sentence.
On appeal, Fenimore argues that the federal sentencing guidelines are
unconstitutional under Blakely and contends that he is entitled to a resentencing.
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In response, the government avers that any non-constitutional error in the district
court’s application of mandatory guidelines was harmless. Specifically, the
government contends that there is no reasonable probability that the district court
would have imposed a lesser sentence under an advisory guidelines scheme
because (i) the district court was not persuaded by mitigating facts concerning
Fenimore’s role in the offense; (ii) no other mitigating facts were presented; and
(iii) the district court did not indicate that it would have imposed a lesser sentence
if not for the mandatory guidelines.1
II. DISCUSSION
While the instant case was pending on appeal, the Supreme Court rendered
its decision in United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). In
Booker, the Supreme Court held that the mandatory nature of the Sentencing
Guidelines made them incompatible with the Sixth Amendment’s guarantee to the
right to a jury trial. Id. at ___, 125 S. Ct. at 749-51. The Court concluded 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
1
Additionally, the government argues that Fenimore is not entitled to a resentencing because,
in a brief filed before the Supreme Court decided United States v. Booker, 543 U.S. __, 125 S. Ct.
738 (2005), Fenimore argues that he is entitled to resentencing only if the guidelines are held
facially unconstitutional, which they were not. We reject the government’s argument and construe
Fenimore’s argument as an appeal of the district court’s Booker statutory error.
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jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Id. at ___, 125 S. Ct. at 756. Additionally, the Court
invalidated two provisions of the Sentencing Reform Act of 1984 that had made
the guidelines mandatory but held that district courts must continue to take the
guidelines into account in conjunction with other sentencing goals. Id. at __,
125 S. Ct. at 764. The Court explicitly noted that both its Sixth Amendment
holding and remedial interpretation of the Sentencing Act should be applied “to all
cases on direct review.” Id. at ___, 125 S. Ct. at 769.
Based on the Supreme Court’s holdings, we have concluded that district
courts could have commited “constitutional” and/or “statutory” errors in
sentencing defendants before Booker. The statutory error, relevant in this case,
occurs when the district court sentences a defendant “under a mandatory
Guidelines scheme, even in the absence of a Sixth Amendment enhancement
violation.” United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
Because Fenimore preserved his objection to the district court’s “statutory”
Booker error, we review the issue de novo, but we will reverse only for harmful
error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam). We
deem a non-constitutional error harmless if, “viewing the proceedings in their
entirety,” we can “say with fair assurance” that “the error did not affect the
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[sentence], or had but very slight effect.” United States v. Mathenia, ___ F.3d ___,
___ (11th Cir. May 23, 2005) (per curiam) (mandate withheld) (citation and
quotations omitted). The government carries the burden to show that the error was
harmless. Id. We have recognized that the government’s burden is “not easy” to
meet. Id.
In this case, the district court committed a Booker statutory error in
sentencing Fenimore under a mandatory guidelines scheme. However, even
considering the government’s arguments, we cannot determine what the district
court would have done had it understood the guidelines to be advisory. We thus
conclude that the government has not demonstrated with fair assurance that this
error had but slight effect on Fenimore’s ultimate sentence. Accordingly, the
Booker statutory error was not harmless.
III. CONCLUSION
Because the government has failed to demonstrate that the district court’s
Booker statutory error was harmless, we VACATE and REMAND for
resentencing consistent with this opinion.
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