[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 5, 2005
No. 04-15849
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00045-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIMAS PENALOZA RIOS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 5, 2005)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Dimas Penaloza Rios appeals his 77-month sentence for illegal reentry into
the United States after removal, in violation of 8 U.S.C. sections 1326(a) and
(b)(2). Rios challenges both the enhancements to his sentence based on his
previous convictions and the application of the United States Sentencing
Guidelines as mandatory. Although one of his objections fails, Rios’s other
objection requires that we vacate his sentence. Because Rios did not object to the
enhancements to his sentence in the district court, and he cannot show that the
application of the enhancements affected his substantial rights, we reject Rios’s
challenge to his sentence on Sixth Amendment grounds. We vacate Rios’s
sentence and remand to the district court for resentencing, however, because Rios
objected to the use of the sentencing guidelines, and the government cannot show
that the use of the guidelines as mandatory was harmless error.
I. BACKGROUND
In July 2004, in accord with a plea agreement, Rios pleaded guilty to one
count of illegal reentry of a removed alien, in violation of 8 U.S.C. section
1326(b)(2). During the Rule 11 hearing, after the district court had accepted the
plea, a government witness, Scott McCormack, testified regarding Rios’s criminal
history. McCormack stated that Rios had two previous convictions in California,
two previous convictions in Georgia, and that Rios had been sentenced to sixteen
years’ imprisonment on one of the convictions. McCormack also stated that Rios
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was previously deported on June 4, 2001, and did not have authorization to reenter
the United States. When questioned, Rios, under oath, admitted the truth of
McCormack’s testimony.
Rios was sentenced in accord with the sentencing guidelines. Under
guidelines section 2L1.2, Rios’s base offense level was 8. The offense level was
increased by 16 levels under guidelines section 2L1.2(b)(1)(A)(i) because Rios was
previously deported after sustaining a conviction for a drug trafficking offense for
which the sentence imposed exceeded thirteen months. Finally, the offense level
was reduced by three levels for acceptance of responsibility for a total offense level
of 21. Rios’s criminal history was set at 13, because of his numerous previous
convictions, he was on parole when he committed the instant offense, and the
offense was committed less than two years following Rios’s release from custody
for his California convictions. With a offense level of 21 and a criminal history
category of VI, the applicable guideline range was 77 to 99 months. The
maximum statutory sentence under 8 U.S.C. section 1326(b) was twenty years.
Rios objected to the presentence investigation report on the ground that the
sentencing guidelines were unconstitutional. Rios did not object to the use of his
previous convictions to calculate his guideline range. Neither did Rios make any
additional argument at sentencing. The district court entered a sentence of 77
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months’ imprisonment.
II. STANDARD OF REVIEW
To the extent Rios objected to the use of the sentencing guidelines as
unconstitutional in the district court, we review his sentence de novo. United
States v. Sanchez, 269 F.3d 1250, 1272 (11th Cir. 2002) (en banc). We will
reverse the district court only if any error was harmful. Id. Any argument not
raised in the district court, however, is reviewed only for plain error. United States
v. Kramer, 73 F.3d 1067, 1074 (11th Cir. 1996).
III. DISCUSSION
Under United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), there
are two kinds of sentencing errors; one is constitutional and the other is statutory.
“[T]he 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.” United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005). In
addition, “[a]s a result of Booker’s remedial holding, Booker error exists when the
district court misapplies the Guidelines by considering them as binding as opposed
to advisory.” U.S. v. Shelton, No. 04-12602, 2005 WL 435120, *5 (11th Cir. Feb
25, 2005). Rios challenges his sentence on both grounds, and we address each
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argument in turn.
As to the alleged constitutional error, Rios’s challenge to the enhancements
to his sentence fails for several reasons. First, nothing in Booker applies to the use
of a previous conviction to enhance a sentence. On the contrary, the Supreme
Court in Booker reaffirmed its 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.” Booker,
125 S. Ct. at 756 (emphasis added); Shelton, 2005 WL 435120, *3. Second, Rios
admitted his previous convictions at his plea hearing and did not object to the
factual statements in the presentence report. See Shelton, 2005 WL 435120, *3.
Third, Rios did not object to the calculation of the guideline range in the district
court nor has he presented any evidence to show that his substantial rights were
affected. See Rodriguez, 398 F.3d at 1301.
Rios’s objection to his sentence on statutory error grounds, which he raised
in the district court, has merit. The district court erred when it sentenced Rios,
because it considered the Guidelines to be mandatory. Although we must
disregard this error if the error was harmless, an error is not harmless if it affects
the substantial rights of the parties. Fed. R. Crim. P. 52(a); United States v.
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Hernandez, 160 F.3d 661, 670 (11th Cir. 1998). The government bears the burden
of showing that the error did not affect the defendant’s substantial rights. See
United States v. Olano, 507 U.S. 725, 741, 113 S. Ct. 1770, 1781 (1993). The
government cannot meet its burden, because the record does not provide any
evidence to show what sentence the district court would have imposed if the
district court had considered the Guidelines to be advisory. The government
conceded in its response brief that this appeal should be remanded for resentencing
under advisory guidelines.
IV. CONCLUSION
Because the calculation of the guideline range by the district court was not
plain error, we reject Rios’s challenge to his sentence on Sixth Amendment
grounds. We VACATE Rios’s sentence and REMAND to the district court for
resentencing, however, because the government cannot show that the use of the
guidelines as mandatory was harmless error.
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