[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 23, 2005
No. 04-14138
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 04-20050-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN FREDDY RINCON-CASTRILLON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 23, 2005)
ON PETITION FOR REHEARING
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
We withdraw our previous order issued on May 12, 2005, and replace it
with this opinion.
Since no member of this panel nor other Judge in regular active service on
the Court has requested that the Court be polled on rehearing en banc, the petition
for rehearing en banc filed by Appellant, John Freddy Rincon-Castrillon, is
DENIED. See Fed. R. App. P. 35. The petition for panel rehearing is GRANTED.
Upon rehearing, we vacate our original opinion, United States v. John Freddy
Rincon-Castrillon, No. 04-14138 (11th Cir. Mar. 18, 2005) and substitute the
following.
Rincon-Castrillon argues that the district court violated his constitutional
rights in considering Rincon-Castrillon’s prior convictions when determining his
sentence. Rincon-Castrillon also argues that we should remand to the district
court for re-sentencing because the sentencing guidelines are advisory under
United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).
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).
A. Sixth Amendment Error
Since Rincon-Castrillon raised his Blakely v. Washington, 542 U.S. __, 124
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S. Ct. 2531 (2004), ( now Booker) argument before the district court, we review
his Booker claims for harmless error. See United States v. Paz, 405 F.3d 946, 948
(11th Cir. 2005). Constitutional error must be disregarded if the error is harmless
beyond a 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
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undermined Almendarez-Torres, that decision does not undermine our outcome
here. See Shepard v. United States, __ U.S. __, 125 S. Ct. 1254 (2005). At his
change of plea hearing, Rincon-Castrillon admitted the underlying fact of his prior
conviction for trafficking cocaine and that he was sentenced to 15 years
imprisonment for that conviction. Accordingly, the sentencing court did not
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, the district court did not err
in finding that Rincon-Castrillon should receive an enhancement based on his
prior conviction. Thus, we conclude that the district court’s use of prior
convictions to enhance Curtis’s sentence did not violate the Sixth Amendment.
B. Statutory Error
Although the district court did not violate the Sixth Amendment in
sentencing Rincon-Castrillon, 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.
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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
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 Rincon-Castrillon’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.
In this case, without opposition from the government, the district court
granted Rincon-Castrillon a full three-level departure for acceptance of
responsibility and then imposed a sentence at the lowest end of the mandatory
guidelines range. We cannot say with fair assurance that the sentence would not
have been lower if the district court had considered the guidelines advisory instead
of mandatory. Therefore, the government has failed to show that district court’s
error did not have a substantial and injurious effect on Rincon Castrillon’s
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sentence.
For the foregoing reasons, we VACATE Rincon-Castrillon’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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