[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 23, 2005
No. 04-15250 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-00029-CR-4-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILIP WAYNE MATHENIA,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 23, 2005)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Philip Wayne Mathenia appeals his 96-month sentence for knowingly
distributing and receiving child pornography, in violation of 18 U.S.C.
§§ 2252A(a)(2)(A) and (b)(1), and knowingly possessing child pornography, in
violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). We affirm.
Mathenia pleaded guilty. He admitted in his plea agreement to knowingly
possessing and distributing over 25,000 images of child pornography, including
those that depicted “the molestation, penetration, and rape of infants.” (R.1:18:3).
At sentencing, the district court imposed a base offense level of seventeen for
“trafficking in material involving the sexual exploitation of a minor.” U.S.S.G. §
2G2.2(a). The court then enhanced Mathenia’s offense level by fifteen for
trafficking in materials involving minors under twelve, id. § 2G2.2(b)(1), for
distributing child pornography through peer-to-peer file sharing groups, id. §
2G2.2(b)(2)(E), for distributing images that depict the sadomasochistic abuse of
minors, id. § 2G2.2(b)(3), for using a computer to receive the images, id. §
2G2.2(b)(5), and for trafficking in more than 600 images, id. § 2G2.2(b)(6)(D).
Finally, the court reduced Mathenia’s offense level by three for accepting
responsibility for his crimes. Id. § 3E1.1(a), (b). When totaled, Mathenia had an
offense level of twenty-nine and a criminal history category of I, resulting in a
guidelines range of 87 months to 108 months in prison.
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Mathenia filed a written objection, and made an oral objection at his
sentencing hearing, that the application of the sentencing guidelines to his case
violated the Sixth Amendment as interpreted by Blakely v. Washington, 542 U.S.
___, 124 S. Ct. 2531 (2004). The district court overruled his Blakely objection,
noting that this Court had held in United States v. Reese, 382 F.3d 1308 (11th Cir.
2004), vacated by 125 S. Ct. 1089 (2005), that the Supreme Court’s decision in
Blakely did not apply to the federal sentencing guidelines. The court then
sentenced Mathenia to 96 months in prison.
The district court ended the sentencing hearing by stating that it was
mindful that the Supreme Court had granted certiorari in United States v. Booker,
375 F.3d 508 (7th Cir. 2004), and United States v. Fanfan, No. 03-47, 2004 WL
1723114 (D. Me. June 28, 2004), and would hear oral argument in those cases a
few days after Mathenia’s sentencing hearing. Given this development, and in a
fit of extrasensory perception, the court explained:
I should also note that, if the Supreme Court affirms the decision in
Booker and holds that, under Blakely, the United States Sentencing
Guidelines are unconstitutional, then I would nonetheless consider
the guidelines as—for their persuasive value or as advisory, and the
sentence I would impose would be the same.
(R.4:19).
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About four months later, the Supreme Court rendered its decision in Booker
and Fanfan. In the resulting opinions, the Supreme Court held “that 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.”
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (citing United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 749–56 (2005)). We have found,
based on this holding, that the district courts could have made both a
constitutional and a statutory error in sentencing defendants pre-Booker. “‘The
constitutional error is the use of extra-verdict enhancements to reach a guidelines
result that is binding on the sentencing judge; the error is in the mandatory nature
of the guidelines once the guidelines range has been determined.’” United States
v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005) (quoting Rodriguez, 398 F.3d at
1300). The statutory error occurs when the district court sentences a defendant
“under a mandatory [g]uidelines scheme, even in the absence of a Sixth
Amendment enhancement violation.” Id. at 1330–31. This case, like Shelton,
concerns Booker statutory error.
Mathenia properly preserved his Booker error claim. See United States v.
Dowling, 403 F.3d 1242, 1245 (11th Cir. 2005); United States v. Rodriguez, ___
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F.3d ___, 2005 WL 895174, *1 (11th Cir. Apr. 19, 2005) (Carnes, J., concurring
in the denial of rehearing en banc). In his written objection to the presentence
investigation report, Mathenia wrote: “Defendant, Phillip Wayne Mathenia,
moves this Court to find the United States Sentencing Guidelines violate the Sixth
Amendment to the United States Constitution on the basis of the decision in
Blakely v. Washington.” (R.1:24:1). Then, at the sentencing hearing, Mathenia
reminded the court of his Blakely objection.
Where there is a timely objection, we review the defendant’s Booker claim
in order to determine whether the error was harmless. See Shelton, 400 F.3d at
1331 n.7; see also United States v. Paz, ___ F.3d ___, 2005 WL 757876, *2 (11th
Cir. Apr. 5, 2005). There are two harmless error standards. One of them applies
to Booker constitutional errors, the other to Booker statutory errors. In Paz, a
Booker constitutional error case, 2005 WL 757876, at *1, we explained that
constitutional errors are harmless where the government can show, beyond a
reasonable doubt, that the error did not contribute to the defendant’s ultimate
sentence, id. at *2. Booker statutory errors, on the other hand, are subject to the
less demanding test that is applicable to non-constitutional errors. See United
States v. Robles, ___ F.3d ___, 2005 WL 1083487, *___ (11th Cir. May 10,
2005). A “non-constitutional error is harmless if, viewing the proceedings in their
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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. Hornaday, 392 F.3d 1306, 1315–16
(11th Cir. 2004) (citations omitted) (quoting Kotteakos v. United States, 328 U.S.
750, 762, 763, 66 S. Ct. 1239, 1246, 1248 (1946)). Because this is a Booker
statutory error case we will apply that standard, instead of the “beyond a
reasonable doubt” test, in determining whether the government has shown that the
error is harmless.
The non-constitutional harmless error standard is not easy for the
government to meet. It 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.
See, e.g., Paz, 2005 WL 757876, at *2; United States v. Garcia, ___ F.3d ___,
2005 WL 845532, *12 (11th Cir. Apr. 13, 2005), cf. Shelton, 400 F.3d at 1331–32
(“[T]he plain error test is difficult to meet, and in particular, the burden of showing
prejudice to meet the third-prong requirement is anything but easy.” (quotations
omitted)). The reason for that parity of difficulty is that the standard is the same in
those two situations; the difference is the party that has the burden. United States
v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778 (1993).
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There are cases where the government was able to demonstrate that the
statutory error of applying the guidelines in a mandatory fashion did not have an
affect on the sentence the defendant received. See, e.g., United States v.
Marcussen, 403 F.3d 982 (8th Cir. 2005); United States v. Thompson, 403 F.3d
533 (8th Cir. 2005). In fact, in Robles, a Booker constitutional error case, this
Court affirmed a defendant’s sentence under the more stringent “beyond a
reasonable doubt” harmless error standard. There, the district court enhanced
Robles’s sentence because it found by a preponderance of the evidence that he had
the equivalent of 52 kilograms of marijuana as relevant conduct. In rejecting
Robles’s Blakely objection, the district court said that: “[M]y sentence would be
the same regardless of whether Blakely had invalidated the guidelines or not,
because I would apply them as guidelines and reach the same conclusion that I
will here today.”
The district court made a materially indistinguishable comment here. In the
course of rejecting Mathenia’s Blakely objection and sentencing him to 96 months
in prison, the district court said that if the Supreme Court in Booker held that the
guidelines were unconstitutional as mandatorily applied, “I would nonetheless
consider the guidelines as—for their persuasive value or as advisory, and the
sentence I would impose would be the same.” (R.4:19). We know because the
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sentencing judge told us that whether the guidelines were mandatory as they were
pre-Booker, or advisory as they are post-Booker, Mathenia’s sentence would be
the same.
Given that the government met the more difficult constitutional harmless
error standard in Robles, we have no trouble concluding that the government has
met the less stringent statutory harmless error standard in this case where the judge
made comments virtually identical to those in Robles. Thus, the government has
demonstrated with fair assurance that the district court’s error of applying the
guidelines in a mandatory fashion did not affect, or had but a slight affect, on
Mathenia’s ultimate sentence.
AFFIRMED.
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