[DO NOT PUBLISH]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. 04-16338
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00141-CR-ORL-28JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ROCKET,
a.k.a. James Rockett,
a.k.a. James Rockett, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(June 23, 2005)
Before BIRCH, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
James Rocket appeals his 72-month sentence imposed pursuant to his plea of
guilty to possession of a firearm by a felon, in violation of 21 U.S.C. § 922(g)(1).
On appeal, Rocket argues that the district court committed reversible error under
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), and United States v.
Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), by sentencing him under a mandatory
Guidelines system.
Because Rocket preserved his Booker claim by raising it at sentencing, we
review the challenge to his sentence de novo, but will vacate and remand only for
harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). “A non-
constitutional 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.” United States v. Mathenia, __ F.3d __ (11th Cir. May 23, 2005)
(quotations, brackets, and citations omitted). Under harmless error review, the
government bears the burden of showing that the error was harmless. Id.
We have explained that there are two types of Booker error – (1) 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, or “constitutional error,” and
(2) the non-constitutional error of being sentenced under a mandatory guidelines
system, or “statutory error.” United States v. Shelton, 400 F.3d 1325, 1330-31
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(11th Cir. 2005). Because Rocket alleges only statutory error, we confine our
discussion to that argument.
Due to the nature of the Supreme Court’s Booker remedy, we have
concluded that a district court errs whenever it sentences a defendant under a
mandatory guidelines scheme. Shelton, 400 F.3d at 1330-31. Furthermore, the
government has failed to meet its burden of proving that the error of sentencing
Rocket under a mandatory guidelines scheme did not affect his substantial rights.
Therefore, the district court’s error was not harmless.
Upon review of the record and the parties’ briefs, we vacate and remand for
resentencing consistent with Blakely and Booker.
VACATED and REMANDED.
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