[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15307
JUNE 14, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00480-CR-T-23-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM H. HYDE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 14, 2005)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
William Hyde appeals his sentence of twenty-one months’ imprisonment,
imposed following his guilty pleas for embezzlement, in violation of 18 U.S.C. §
641, and conversion, in violation of 42 U.S.C. § 408(a)(5). For the reasons that
follow, we vacate and remand for resentencing.
I. Background
Hyde was charged by superseding indictment with one count of
embezzlement of Social Security Funds, in violation of 18 U.S.C. § 641, and one
count of conversion of Social Security benefits, in violation of 42 U.S.C. §
408(a)(5). On the morning of the trial, he agreed to plead guilty to both counts
without a written plea agreement.
At the change of plea hearing, the government proffered that Hyde had
applied to be the representative payee for his disabled brother’s Social Security
benefits following the death of their father. The brother briefly lived with Hyde,
but moved out of state during the commission of the offenses. Hyde received his
brother’s disability and supplemental security income benefits checks for almost a
year and either cashed or deposited them in his own account even though he knew
that money was supposed to be used for his brother’s care. During this period, he
obtained $51,083.46, but gave his brother only $2,931. Hyde admitted that the
facts were correct, and he entered his guilty plea to both counts of the indictment.
The court accepted the plea and adjudicated Hyde guilty.
2
The probation officer prepared a presentence investigation report (“PSI”),
using the 2003 edition of the manual and assigning a base offense level of six
under U.S.S.G. § 2B1.1(a), with a six-level increase based on the amount of loss
involved. The probation officer then included (1) a three-level enhancement for
vulnerable victim under U.S.S.G. § 3A1.1, based on a determination that Hyde
intentionally selected his brother, who was unable to care for himself, and (2) a
two-level enhancement for abuse of trust under U.S.S.G. § 3B1.3, based on a
determination that Hyde’s representative status enabled him to convert the funds.
The probation officer recommended a two-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a). With an adjusted offense level of fifteen
and a criminal history category I, Hyde’s guidelines range was eighteen to twenty-
four months’ imprisonment.
Hyde objected to the guidelines calculations, arguing that his base offense
level could not be enhanced based on facts not found by a jury beyond a reasonable
doubt, in light of Blakely v. Washington, 542 U.S. , 124 S. Ct. 2531 (2004). He
also contested the factual basis for the various enhancements. The government
objected to the reduction for acceptance of responsibility. At sentencing, the court
rejected Hyde’s challenge to the amount of loss because he had admitted to the
amount during the plea colloquy. The court overruled Hyde’s other objections.
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The court also denied any reduction for acceptance of responsibility based on
Hyde’s lack of cooperation and the fact that he forced the government to prepare
for trial by waiting until the morning of trial to enter a plea. Applying the 2000
edition of the guidelines manual to avoid any ex post facto problems, the court
calculated the base offense level as four with a seven-level increase for the amount
of loss under U.S.S.G. § 2B1.1(a) and (b)(1)(H). This adjusted offense level was
increased by three levels based on the vulnerable-victim enhancement and by two
levels based on the abuse- of-trust enhancement, resulting in a total adjusted
offense level of sixteen. Hyde’s resulting guideline range was twenty-one to
twenty-seven months’ imprisonment. The court sentenced Hyde to twenty-one
months’ imprisonment on each count, to run concurrently, and ordered restitution
in the amount of $48,152.46.
II. Discussion
Hyde argues that this case should be remanded for resentencing
in light of United States v. Booker, 543 U.S. , 125 S. Ct. 738, 749-56 (2005)
because his offense level was increased based on two extra verdict enhancements
under a mandatory guidelines system: (1) the vulnerable-victim enhancement and
(2) the abuse-of-trust enhancement. In Booker, the Supreme Court held that
Blakely applied to the federal sentencing guidelines and “that the Sixth
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Amendment right to trial by jury is violated where under a mandatory guidelines
system a sentence is increased because of an enhancement based on facts found by
the judge that were neither admitted by the defendant nor found by the jury.”
Booker, 125 S. Ct. at 749-56. This court has explained that a Booker error also
results from a district court’s use of a mandatory guidelines scheme, even in the
absence of any constitutional error. United States v. Shelton, 400 F.3d 1325, 1330-
31 (11th Cir. 2005).
Here, we need not determine whether the error is constitutional or statutory
because the government concedes that the error is of the constitutional variety.
Moreover, the government also concedes that Hyde preserved his Booker error
claim. Therefore, we review his claim de novo and will reverse unless any error
was harmless. United States v. Robles, F.3d , 2005 WL 1083487, *3 (11th
Cir. May 10, 2005). For Booker constitutional errors to be harmless, it must be
“clear beyond a reasonable doubt that the error complained of did not contribute to
the sentence obtained.” United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)
(quoting United States v. Candelario, 240 F.3d 1300, 1307 (11th Cir. 2001))
(citations, bracket, and internal quotations omitted); see also United States v.
Mathenia, F.3d , 2005 WL 1201455, at *2 (11th Cir. May 23, 2005)
(discussing different harmless error standards for constitutional error versus
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statutory error). The burden is on the government to prove that the error was
harmless beyond a reasonable doubt. Robles, 2005 WL 1083487 at *3.
Here, the issue is whether the constitutional error was harmless. We
conclude that it was not. The government simply has not carried its burden to
prove that the error was harmless beyond a reasonable doubt. See Paz, 405 F.3d at
948-49. At the sentencing hearing, the district court made no revealing statements
about the sentence imposed or the impact of Blakely on its sentence. Absent some
indication from the court that it would have imposed the same sentence if the
guidelines were only advisory, the government cannot show harmless error.
Compare Robles, 2005 WL 1083487 at *3 (in Booker constitutional error case,
affirming a defendant’s sentence where district judge said that “my sentence would
be the same regardless of whether Blakely had invalidated the guidelines or
not...”). Thus, Hyde must be resentenced under the advisory guidelines system.1
Accordingly, we VACATE and REMAND to the district court for
resentencing consistent with Booker.
1
We also reject Hyde’s argument that he was entitled to a reduction for acceptance of
responsibility. We review a district court’s determination that a defendant is not entitled to a
reduction for acceptance of responsibility for clear error. United States v. Williams, F.3d ,
2005 WL 1058931, at *9-10 (11th Cir. May 6, 2005). Hyde waited until the morning of the trial
to plead guilty and he was uncooperative with the probation officer regarding his financial status,
which related to the restitution required by the conduct. The district court found this conduct
was inconsistent with acceptance of responsibility. This finding was not clearly erroneous.
Thus, on remand, the district court need not readdress whether Hyde was entitled to a reduction
for acceptance of responsibility.
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