[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 27, 2005
No. 04-12905
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-20967-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEAN ROBERT CLEDANOR,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(June 27, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before HULL, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Defendant-appellant Jean Robert Cledanor pleaded guilty to illegal re-entry,
in violation of 8 U.S.C. § 1326. Cledanor admitted that he had a prior conviction,
that he had been deported, and that he did not have permission to re-enter the
United States. In calculating the sentence, the district court imposed an
enhancement based on Cledanor’s prior drug-trafficking conviction and sentenced
Cledanor to twenty-four months imprisonment and two years supervised release.
Cledanor appealed, asserting that (1) his sentence was unconstitutional under
Blakely v. Washington, 542 U.S. – 124 S.Ct. 2531, – L.Ed.2d – (2004), and
(2) that the enhancement was improper. After we affirmed the sentence, the U.S.
Supreme Court granted certiorari, vacating and remanding the decision in light of
United States v. Booker, 543 U.S. –, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
In Booker, the Supreme Court applied the Blakely decision to the Federal
Sentencing Guidelines, holding that the mandatory nature of the federal guidelines
rendered them incompatible with the Sixth Amendment’s guarantee to the right to
a jury trial. 125 S.Ct. at 749-52. The Court explicitly reaffirmed its rationale 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.” Booker, 125 S.Ct. at 756.
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Cledanor did not raise a Booker challenge to his sentence before the district
court; therefore, we review for plain error.1 United States v. Rodriguez, 398 F.3d
1291, 1301, 1306 (11th Cir.), petition for cert. pending, No. 04-1148 (Feb. 23,
2005). “Plain error occurs where (1) there is an error; (2) that is plain or obvious;
(3) affecting the defendant’s substantial rights in that it was prejudicial and not
harmless; and (4) that seriously affects the fairness, integrity, or public reputation
of the judicial proceedings.” Id.
Cledanor’s enhancement was based on a prior conviction. Even after
Booker, such an enhancement does not violate the Sixth Amendment. See United
States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir. 2005); Camacho-
Ibarquen, 404 F.3d at 1290. Thus, there is no constitutional error in Cledanor’s
sentence.
We have, however, recognized that a statutory Booker error may result from
the mandatory application of the guidelines, absent any enhancement. As this
court has explained, although a statutory Booker error may meet the first two
prongs of the plain error test, to meet the third prong, Cledanor must show that his
sentence would have been different but for the mandatory application of the
1
Cledanor raised several challenges to his sentence, but we need not revisit those issues
here, as they are unchanged by the Booker decision. See United States v. Camacho-Ibarquen, 404
F.3d 1283 (11th Cir. 2005) (rejecting similar challenges).
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guidelines. See United States v. Shelton, 400 F.3d 1328, 1330 (11th Cir. 2005);
see also United States v. Martinez, 407 F.3d 1170 (11th Cir. 2005) (holding, under
plain error review, that the mandatory application of the sentencing guidelines
affected Martinez’s substantial rights because the court indicated its frustration
with the severity of the guideline sentence).
Here, Cledanor has met that burden. The district court expressed its concern
over the sentence required under the guidelines, stating that “I see your argument,
I would like to go with the argument, I think that in the scales that the clear
language is that I must follow 2L1.2(b)(1)(B), and I regretfully overrule the
objection.” The court further stated that it was “very sorry to impose the
sentence,” and that it would impose the “lowest sentence possible.” Thus, under
Shelton, this statutory error warrants remand.
Accordingly, we VACATE and REMAND for resentencing.
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