[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 2, 2005
No. 04-15211 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00185-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE HOLGUIN-DOMINGUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 2, 2005)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Jorge Holguin-Dominguez appeals his 57-month sentence imposed after
pleading guilty to one count of illegal reentry of a previously deported alien, in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). Holguin-Dominguez argues that the
district court erred, under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000), and Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), by
enhancing his offense level by 16 points based on his three prior convictions that
were not charged in the indictment, found by a jury, or admitted by him. He
claims that his Fifth and Sixth Amendment rights were violated, and the sentence
imposed upon him was illegal. Holguin-Dominguez also contends that Apprendi
and Blakely called into doubt the viability of Almendarez-Torres v. United States,
523 U.S. 224, 118 S. Ct. 1219 (1998).
Since Holguin-Dominguez preserved his constitutional claim by raising it in
the district court, we review his sentence de novo, but will reverse only for harmful
error. United States v. Paz, __ F.3d __, No. 04-14829, manuscript op. at 4 (11th
Cir. April 5, 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 if due to be
affirmed even though there was error.” United States v. Mathenia, 2005 WL
1201455 at *2 (11th Cir. May 23, 2005) (quotations, brackets, and citations
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omitted).
In Blakely, the Supreme Court held that, under the state of Washington’s
mandatory sentencing guidelines system, the imposition of a sentencing
enhancement based upon facts neither admitted by the defendant nor found by the
jury violated the defendant’s Sixth Amendment right to a jury trial. Blakely, 542
U.S. at __, 124 S. Ct. at 2534-38. In United States v. Booker, 543 U.S. __, 125 S.
Ct. 738 (2005), the Supreme Court extended this holding to the federal sentencing
guidelines. 543 U.S. at __, 125 S. Ct. at 755. We have since stated that there
could be two types of Booker error: (1) a Sixth Amendment error – 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; and (2) a statutory error – the
error of being sentenced under a mandatory guidelines system. United States v.
Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
A. Sixth Amendment Error
“In Almendarez-Torres v. United States, the Supreme Court held that the
government need not allege in its indictment and need not prove beyond a
reasonable doubt that a defendant had prior convictions for a district court to use
those convictions for purposes of enhancing a sentence.” United States v.
Marseille, 377 F.3d 1249, 1257 (11th Cir.), cert. denied, 125 S. Ct. 637 (2004). In
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Apprendi, the Supreme Court declined to revisit Almendarez-Torres and held that,
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 489-90, 120 S. Ct. at
2362-63.
The Supreme Court revisited that rule in Blakely in the context of
Washington state’s sentencing guideline scheme, and clarified that “the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant. . . . In other words, the relevant ‘statutory maximum’ is not the
maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” Blakely, 542 U.S. at
___, 124 S. Ct. at 2537 (emphasis in original). In a footnote, however, the Court
explicitly remarked that “[t]he Federal Guidelines are not before us, and we
express no opinion on them.” Id. at ___ n.9, 124 S. Ct. at 2538 n.9.
While the instant case was pending on appeal, the Supreme Court issued its
decision in Booker, finding “no distinction of constitutional significance between
the Federal Sentencing Guidelines and the Washington procedures at issue” in
Blakely. Booker, 543 U.S. at ___, 125 S. Ct. at 749. Resolving the constitutional
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question left open in Blakely, the Court held that the mandatory nature of the
federal sentencing guidelines rendered them incompatible with the Sixth
Amendment’s guarantee to the right to a jury trial. Id. at ___,125 S. Ct. at 749-51.
In extending its holding in Blakely to the federal sentencing guidelines, the Court
explicitly reaffirmed its rationale in Apprendi 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.
at ___, 125 S. Ct. at 756. The Court concluded that, to best preserve Congress’s
intent in enacting the Sentencing Reform Act of 1984, the appropriate remedy was
to “excise” two specific sections – 18 U.S.C. § 3553(b)(1) (requiring a sentence
within the guideline range, absent a departure) and 18 U.S.C. § 3742(e)
(establishing standards of review on appeal) – thereby effectively rendering the
sentencing guidelines advisory only. Id. at ___, 125 S.Ct. at 764.
After Booker, we held that the decision in Almendarez-Torres was “left
undisturbed by Apprendi, Blakely, and Booker,” and that “a district court does not
err by relying on prior convictions to enhance a defendant’s sentence.” Shelton,
400 F.3d at 1329; see also United States v. Orduno-Mireles, __ F.3d __, No. 04-
12630 (11th Cir. April 6, 2005); see also United States v. Camacho-Ibarquen, 404
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F.3d 1283, 1290 (11th Cir. 2005). Because Almendarez-Torres was left
undisturbed by Apprendi, Blakely, and Booker, the district court committed no
Sixth Amendment error.1
B. Statutory Error
In United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), cert. petition
filed, No. 04-1148 (U.S. Feb. 23, 2005), we stated that, under the holding in
Booker, “the Sixth 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.” 398 F.3d at 1298 (emphasis in original). In that case, we
determined, under plain error review, that because the district court determined the
defendant’s sentence based on its own drug quantity finding, there was Booker
error that was plain. Id. at 1298-99. We concluded, however, that the defendant
could not establish that his substantial rights had been affected because there was
nothing in the record to indicate that the district court would have imposed a
different sentence, had it known that it had the liberty to do so. Id. at 1301.
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We also reject Holguin-Dominguez’s Fifth Amendment challenge to his sentence. As
previously noted, Apprendi, Blakely, and Booker exempted prior convictions from their holdings
and none of those decisions held that a failure of an indictment to charge sentence-enhancing
facts constituted a constructive amendment or otherwise contravened the Fifth Amendment so as
to require reversal.
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We subsequently concluded in Shelton that, although there was no Sixth
Amendment error because the defendant had admitted to the drug quantity that the
district court relied upon to enhance his sentence, “it was Booker error for the
district court to sentence [him] under a mandatory guidelines scheme, even in the
absence of a Sixth Amendment enhancement violation.” Shelton, 400 F.3d at
1330-31. We further found that the Booker error was plain error that had affected
the defendant’s substantial rights because the district court stated several times
during sentencing that the guideline sentence was too severe, thus, “there [was] a
reasonable probability the district court would have imposed a lesser sentence . . .
if it had not felt bound by the Guidelines.” Id. at 1332-33.
Because the district court sentenced Holguin-Dominguez under a mandatory
guidelines scheme, there was Booker error, even though the district court
committed no constitutional violation in sentencing Holguin-Dominguez. The
government, in its brief, conceded that it could not show that the error complained
of did not contribute to the sentence obtained. The district court imposed a
sentence at the low end of the applicable guidelines range and stated at sentencing
that it did not have “much other choice of what to do.” The government’s
concession and the evidence in the record prevent us from concluding that the error
was harmless. Accordingly, we vacate Holguin-Dominguez’s sentence and remand
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for re-sentencing consistent with Booker.
VACATED AND REMANDED.
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