[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 15, 2005
No. 04-16138
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 04-00273-CR-T-23MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MEJIA-GIOVANI,
a.k.a. Jorge Cruz-Gutierrez,
a.k.a. Sergio Romano Gonzalez,
a.k.a. Carlos Giovany-Mejia,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 15, 2005)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Carlos Mejia-Giovani, a citizen of Honduras, appeals his sentence for illegal
re-entry into the United States after removal, in violation of 8 U.S.C. sections
1326(a) and (b)(2). Mejia-Giovani contends that the district court erred under
United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), when it sentenced
him under a mandatory guideline system. Based on the statements of the district
court that Mejia-Giovani’s best interests were served by applying the Sentencing
Guidelines and that Mejia-Giovani was at risk of an upward departure from the
Guidelines, we conclude that the statutory error was harmless. We affirm Mejia-
Giovani’s sentence.
I. BACKGROUND
Mejia-Giovani pleaded guilty without the benefit of a plea agreement. At
the plea hearing, Mejia-Giovani admitted that he had a felony conviction for the
sale of cocaine and a felony conviction for being a previously deported alien found
in the United States. He also admitted that he had been deported on three different
dates: December 22, 1993, April 1, 1997, and August 20, 2003.
According to the Presentence Investigation Report, Mejia-Giovani was born
in Honduras in 1975. He had a six-year-old daughter who lived with Mejia-
Giovani’s mother in Honduras and a two-year old daughter who lived in Sarasota,
Florida. Mejia-Giovani told the probation officer that after his release, he would
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return to Honduras to live with his family.
The PSI calculated Mejia-Giovani’s total offense level at 21. The base
offense level was eight under U.S.S.G. section 2L1.2(a), and sixteen levels were
added because Mejia-Giovani was previously deported for a drug trafficking
conviction for which the sentence exceeded thirteen months. Mejia-Giovani
received a three-level reduction for acceptance of responsibility. He had six
criminal history points, which resulted in a criminal history category of III. His
imprisonment range under the Sentencing Guidelines was 46-57 months.
Mejia-Giovani objected to the PSI on the ground that, under Blakely v.
Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348 (2000), the Sentencing Guidelines were
unconstitutional. He argued both that he should not be sentenced under the
Guidelines and that he should not receive a sixteen-level enhancement based on
facts that were not proved to a jury beyond a reasonable doubt. At the sentencing
hearing, Mejia-Giovani reiterated his objection that the Sentencing Guidelines
were unconstitutional, although he acknowledged that our then controlling
precedent bound the court to follow the Guidelines.
The district court questioned the wisdom of Mejia-Giovani’s objection, and
Mejia-Giovani’s counsel acknowledged that applying the Guidelines was likely in
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the best interest of his client:
THE COURT: I agree that the Eleventh Circuit has spoken on
it and suggested, shall we say, that – which is what I was going to do
anyway – to continue to apply the sentencing guidelines which is to
say that we would apply the applicable statute and applicable law
until appropriate authority says not to. As it remains to be seen, it is
as a prediction, but at any rate it is due to be denied today.
I’m not sure that the best interest of the defendant aren’t
represented by the guidelines staying in effect on this.
[COUNSEL]: I agree, Your Honor. I have discussed that with
my client.
THE COURT: It has something to do with what the 2005
Congress or United States District Judge in 2005 would think of
repeat instances of alien deportation. One’s patience can get short in
a big hurry. But anyway, I think that your – your objection may have
some merit, and I’m due to deny it.
Later in the same hearing, the district court warned about the probable
negative result for Mejia-Giovani if the Guidelines were eventually discarded:
But to the extent that this defendant undertakes to establish his own
policy and enforce his own policy with respect to his right to work in
the United States, he does it as his extreme risk.
Frankly, I suspect that if the – just so he’s clear that this is
nothing but my guess, that if the sentencing guidelines as they now
situated are discarded by the Supreme Court in the coming weeks,
and Congress again addresses this issue, that the remedy is likely to
be an order of magnitude or two more severe than it is now.
And perhaps the act of unlawful immigration will become a
more risky proposition than it is now. Anyway, that is not relevant in
the slightest to the computation of this sentence.
Finally, after Mejia-Giovani asked the court to forgive him and explained
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that he broke the law to help support his daughter who was living in Sarasota, the
court explained that Mejia-Giovani was at risk of an upward departure, which
would be a certainty if he again illegally re-entered the United States:
I want to explain something to you just person to person. The
statutory maximum for this offense is 20 years. Any judge that
sentences you in the future for re-entering the United States will have
before them the same history that I have before me now.
And that judge will know that repeatedly sentencing you in
accordance with the sentencing guidelines has had no effect, and that
you are dedicated to re-entering the United States without regard to
the cost.
I don’t mean to seem harsh. I don’t mean to seem threatening.
I just want to tell you the facts as they are. You’re subject to having a
judge even with the guidelines in place determining that you are
incorrigible, and upwardly departing substantially so as not to
endanger officers in the task of arresting you and not to create a bad
example for other aliens who would immigrate unlawfully into the
United States.
No judge enjoys upwardly departing or departing upward, but I
think that you are – you’re in – frankly at risk of it this morning. But
if you do it again. I – if you come back to the United States
unlawfully again, I think you’ll find the system out of patience.
The district court then sentenced Mejia-Giovani to 51 months’ imprisonment and
three years’ supervised release.
II. DISCUSSION
This Court has explained that there are two kinds of sentencing errors based
on the decision of the Supreme Court in Booker: one is constitutional and the
other is statutory. As to the first error, “the Sixth Amendment right to trial by jury
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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) (citations omitted). As to the second kind of
error, “[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.” United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
This appeal involves the latter kind of error. Mejia-Giovani does not
contend that the district court committed a constitutional error. Mejia-Giovani
argues that the district court committed statutory error under Booker when the
court considered the Guidelines as mandatory.
Because Mejia-Giovani properly preserved his Booker objection, we review
for harmless error. See United States v. Mathenia, __ F.3d __, No. 04-15250, slip
op. at 5 (11th Cir. May 23, 2005). The government concedes that the district court
committed statutory error when it sentenced Mejia-Giovani under a mandatory
guideline system. See id. at 1330-31. The burden then is on the government to
show that the statutory error was harmless. See id. at 6.
The standard for determining whether a statutory error is harmless is “less
demanding” than the standard for constitutional errors under Booker. Id. To
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prove that a constitutional error was harmless, the government must prove,
“beyond a reasonable doubt, that the error did not contribute to the defendant’s
ultimate sentence.” Id. To prove that a statutory error was harmless, the
government must show that “viewing the proceedings in their entirety, . . . 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.” Id. at 5-6.
That is not to say that the standard for determining whether a statutory error
was harmless is an easy standard for the government to meet. As we have
explained, “[i]t is as difficult for the government to meet that standard as it is for a
defendant to meet the third-prong prejudice standard for plain error review.” Id.
Although this standard is difficult to satisfy, the government can do so in this
appeal.
Our examination of the record convinces us that Mejia-Giovani would not
have benefitted from the application of the Guidelines as advisory. The district
court explained that its patience was running thin regarding Mejia-Giovani’s
“dedicat[ion] to re-entering the United States without regard to the cost” or the
law. The court also stated that it did not believe that Mejia-Giovani benefitted
from the argument that the court should not apply the Guidelines, and the court
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stated that Mejia-Giovani was at risk of an upward departure. The court
repeatedly warned Mejia-Giovani of the consequences he could face if he again re-
entered illegally. The district court then sentenced Mejia-Giovani in the middle of
the guideline range. Based on this record, we can say with fair assurance that
Mejia-Giovani would not have received a lesser sentence in the absence of the
statutory error. The error, therefore, was harmless.
III. CONCLUSION
The district court committed statutory error under Booker, but the error was
harmless. The error “did not affect the [sentence], or had but very slight effect.”
Id. Mejia-Giovani’s sentence is, therefore,
AFFIRMED.
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