[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 04-14320 ELEVENTH CIRCUIT Non-Argument Calendar June 28, 2005 ________________________ THOMAS K. KAHN CLERK
D.C. Docket No. 03-00133-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK MORGAN,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the Middle District of Florida _________________________ (June 28, 2005)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Frank Morgan appeals his 151-month sentence for distribution of 5 grams or
more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2005). On appeal, he argues that the district court committed reversible error when it: (i) enhanced his
sentence based on his prior convictions, in violation of Blakely v. Washington,
124 S.Ct. 2531 (2004) and United States v. Booker, 125 S.Ct. 738 (2005); and (ii)
enhanced his sentenced under the mandatory sentencing guidelines regime, which
Booker has since rendered advisory. We find no merit in Morgan’s first argument,
given binding Supreme Court precedent which permits district courts to rely on
prior convictions to enhance sentences. However, because Morgan has preserved
his Booker claim, and the government has not met its burden to show that the
statutory Booker error in Morgan’s sentence was harmless, we vacate his sentence
and remand the case to the district court for resentencing consistent with Booker.
BACKGROUND
Morgan pled guilty to count one of a four-count indictment, admitting that
he possessed with intent to distribute five or more grams of crack cocaine base, in
contravention of 21 U.S.C. § 841(a)(1) (2005). The Presentence Investigation
Report (“PSI”) set the base offense level at 26, and gave a two-level adjustment
for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), and a one-level
adjustment for a timely plea, pursuant to U.S.S.G. § 3E1.1(b). Taking these into
account, the adjusted offense level stood at 23. However, because Morgan’s
criminal history included a prior state robbery offense and a prior federal drug
2 offense, he qualified as a career offender within the meaning of U.S.S.G. § 4B1.1.
With the career criminal classification, the PSI calculated his enhanced offense
level at 31. With a criminal history category of VI, the PSI stated that the
guidelines imprisonment range was 188 months to 235 months.
Morgan filed several objections to the PSI, including one in which he
argued that Blakely applied to the federal sentencing guidelines. The district court
overruled that objection, but did grant a motion to reduce Morgan’s criminal
history classification from VI to IV under U.S.S.G. § 4A1.3 in order to avoid
criminal history over-representation. With a criminal history category IV and an
adjusted offense level of 31, the guidelines range stood between 151 months’ and
188 months’ imprisonment. The district court sentenced Morgan to the minimum
guidelines sentence of 151 months. Morgan timely appealed.
STANDARD OF REVIEW
Because Morgan raised his constitutional objection to the district court’s
application of the Sentencing Guidelines at sentencing, we review the issue de
novo, and reverse “only if any error was harmful.” United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005). Constitutional Booker errors are harmless only where
the government can show, beyond a reasonable doubt, that the error did not
contribute to the defendant’s sentence. Id. For a non-constitutional Booker error
3 to be harmless, the government shoulders the somewhat lower burden of proving
that when the proceedings are viewed in their entirety, the error did not affect the
sentence, or had “but very slight effect.” United States v. Mathenia, 04-15250,
2005 U.S. App. LEXIS 9352 at *6 (11th Cir. May 23, 2005).
ENHANCEMENTS BASED ON PRIOR CONVICTIONS
The Supreme Court has held that the government need not allege in the
indictment nor prove beyond a reasonable doubt the fact that a defendant had prior
convictions in order for a district court to use those convictions to enhance the
defendant’s sentence. United States v. Almendarez-Torres, 523 U.S. 224, 247
(1998); Shepard v. United States, 125 S.Ct. 1254, 1257 (2005). The Booker
decision itself confirms that the rule set forth in Almendarez-Torres remains good
law. See Booker, 125 S.Ct. at 756 (“Any 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.”) (emphasis added); see
also, United States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir. 2005)
(holding that following Booker and Shepard, “Almendarez-Torres remains the law
until the Supreme Court determines that [it] is not binding precedent.”).
4 In light of this binding precedent, we reject Morgan’s contentions that
Almendarez-Torres did not survive Booker and that the district court committed
constitutional error when it enhanced his sentence based upon prior convictions.
STATUTORY BOOKER ERROR
Even in the absence of constitutional Booker error, the district court
commits statutory Booker error where it imposes a sentence under a mandatory
guidelines system. United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir.
2005). Because this error is statutory rather than constitutional, it is harmless only
if the government demonstrates that the error did not affect the sentence, or had
“but very slight effect.” Mathenia, 2005 U.S. App. LEXIS 9352 at *6.
The parties here properly agree that there is statutory Booker error in
Morgan’s sentence because he was sentenced under the mandatory guidelines
scheme that Booker has rendered advisory. The government, however, argues that
the error is harmless because: (i) the record contains no indication that the district
court would have imposed a lesser sentence had it understood its discretion to do
so; and (ii) the district court, in ruling on Morgan’s motion for a downward
departure, stated that it while it would reduce Morgan’s criminal history category
by two levels, it would not further depart downward further on the facts of the
case.
5 The government’s first argument is misplaced, as the government bears the
burden of demonstrating that the statutory Booker error was harmless. Mathenia,
2005 U.S. App. LEXIS 9352 at *6. Indeed, the government’s burden of
establishing that a preserved error was harmless is the same standard the defendant
must meet in order to demonstrate prejudice under the third-prong of plain error
review. Id. at *7. We have held that a defendant does not meet that plain error
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 04-14320 ELEVENTH CIRCUIT Non-Argument Calendar June 28, 2005 ________________________ THOMAS K. KAHN CLERK
D.C. Docket No. 03-00133-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK MORGAN,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the Middle District of Florida _________________________ (June 28, 2005)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Frank Morgan appeals his 151-month sentence for distribution of 5 grams or
more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2005). On appeal, he argues that the district court committed reversible error when it: (i) enhanced his
sentence based on his prior convictions, in violation of Blakely v. Washington,
124 S.Ct. 2531 (2004) and United States v. Booker, 125 S.Ct. 738 (2005); and (ii)
enhanced his sentenced under the mandatory sentencing guidelines regime, which
Booker has since rendered advisory. We find no merit in Morgan’s first argument,
given binding Supreme Court precedent which permits district courts to rely on
prior convictions to enhance sentences. However, because Morgan has preserved
his Booker claim, and the government has not met its burden to show that the
statutory Booker error in Morgan’s sentence was harmless, we vacate his sentence
and remand the case to the district court for resentencing consistent with Booker.
BACKGROUND
Morgan pled guilty to count one of a four-count indictment, admitting that
he possessed with intent to distribute five or more grams of crack cocaine base, in
contravention of 21 U.S.C. § 841(a)(1) (2005). The Presentence Investigation
Report (“PSI”) set the base offense level at 26, and gave a two-level adjustment
for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), and a one-level
adjustment for a timely plea, pursuant to U.S.S.G. § 3E1.1(b). Taking these into
account, the adjusted offense level stood at 23. However, because Morgan’s
criminal history included a prior state robbery offense and a prior federal drug
2 offense, he qualified as a career offender within the meaning of U.S.S.G. § 4B1.1.
With the career criminal classification, the PSI calculated his enhanced offense
level at 31. With a criminal history category of VI, the PSI stated that the
guidelines imprisonment range was 188 months to 235 months.
Morgan filed several objections to the PSI, including one in which he
argued that Blakely applied to the federal sentencing guidelines. The district court
overruled that objection, but did grant a motion to reduce Morgan’s criminal
history classification from VI to IV under U.S.S.G. § 4A1.3 in order to avoid
criminal history over-representation. With a criminal history category IV and an
adjusted offense level of 31, the guidelines range stood between 151 months’ and
188 months’ imprisonment. The district court sentenced Morgan to the minimum
guidelines sentence of 151 months. Morgan timely appealed.
STANDARD OF REVIEW
Because Morgan raised his constitutional objection to the district court’s
application of the Sentencing Guidelines at sentencing, we review the issue de
novo, and reverse “only if any error was harmful.” United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005). Constitutional Booker errors are harmless only where
the government can show, beyond a reasonable doubt, that the error did not
contribute to the defendant’s sentence. Id. For a non-constitutional Booker error
3 to be harmless, the government shoulders the somewhat lower burden of proving
that when the proceedings are viewed in their entirety, the error did not affect the
sentence, or had “but very slight effect.” United States v. Mathenia, 04-15250,
2005 U.S. App. LEXIS 9352 at *6 (11th Cir. May 23, 2005).
ENHANCEMENTS BASED ON PRIOR CONVICTIONS
The Supreme Court has held that the government need not allege in the
indictment nor prove beyond a reasonable doubt the fact that a defendant had prior
convictions in order for a district court to use those convictions to enhance the
defendant’s sentence. United States v. Almendarez-Torres, 523 U.S. 224, 247
(1998); Shepard v. United States, 125 S.Ct. 1254, 1257 (2005). The Booker
decision itself confirms that the rule set forth in Almendarez-Torres remains good
law. See Booker, 125 S.Ct. at 756 (“Any 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.”) (emphasis added); see
also, United States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir. 2005)
(holding that following Booker and Shepard, “Almendarez-Torres remains the law
until the Supreme Court determines that [it] is not binding precedent.”).
4 In light of this binding precedent, we reject Morgan’s contentions that
Almendarez-Torres did not survive Booker and that the district court committed
constitutional error when it enhanced his sentence based upon prior convictions.
STATUTORY BOOKER ERROR
Even in the absence of constitutional Booker error, the district court
commits statutory Booker error where it imposes a sentence under a mandatory
guidelines system. United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir.
2005). Because this error is statutory rather than constitutional, it is harmless only
if the government demonstrates that the error did not affect the sentence, or had
“but very slight effect.” Mathenia, 2005 U.S. App. LEXIS 9352 at *6.
The parties here properly agree that there is statutory Booker error in
Morgan’s sentence because he was sentenced under the mandatory guidelines
scheme that Booker has rendered advisory. The government, however, argues that
the error is harmless because: (i) the record contains no indication that the district
court would have imposed a lesser sentence had it understood its discretion to do
so; and (ii) the district court, in ruling on Morgan’s motion for a downward
departure, stated that it while it would reduce Morgan’s criminal history category
by two levels, it would not further depart downward further on the facts of the
case.
5 The government’s first argument is misplaced, as the government bears the
burden of demonstrating that the statutory Booker error was harmless. Mathenia,
2005 U.S. App. LEXIS 9352 at *6. Indeed, the government’s burden of
establishing that a preserved error was harmless is the same standard the defendant
must meet in order to demonstrate prejudice under the third-prong of plain error
review. Id. at *7. We have held that a defendant does not meet that plain error
third-prong where the record does not permit a conclusion one way or the other as
to whether the district court would’ve imposed a lower sentence under an advisory
guidelines scheme. United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.
2005). By the same token, where the record does not permit a conclusion as to
what sentence the district court would have imposed under an advisory version of
the guidelines, the government has not satisfied it burden of establishing harmless
error under preserved error review. We thus reject the government’s argument
that the non-constitutional Booker error in Morgan’s sentence was harmless
because the record would leave us speculating as to what sentence the district
court would impose in its discretion. Rather, the uncertainty as to what sentence
the district court would impose post-Booker precludes a conclusion that the error
is harmless.
6 The government’s second argument, that Booker statutory error is harmless
because of the district court’s refusal to depart downward further, is similarly
inapposite. We have held that a district court’s decision not to depart downward
under U.S.S.G. § 5K1.1 does not demonstrate that a constitutional Booker error is
harmless, because the mandatory guidelines did not grant the district court
unfettered discretion as to departures, but rather, narrowly constrained the
considerations relevant to departures and the extent to which such departures were
permissible. United States v. Davis, 04-14585, 2005 U.S. App. LEXIS 7701 at *
(11th Cir. May 4, 2005). The same considerations apply to statutory Booker error.
Here, the district court’s decision to grant a departure under U.S.S.G. § 4A1.3 did
not involve the universe of sentencing factors relevant under 18 U.S.C. § 3553(a),
nor does § 4A1.3 grant the district court the same degree of discretion that it now
possesses under the post-Booker advisory guidelines. As in Davis, we conclude
that the district court’s decision to grant a limited downward departure pursuant to
U.S.S.G. § 4A1.3(b)(1) does not demonstrate what sentence the district court
would have imposed had it understood the guidelines to be advisory, nor can it
serve to satisfy the government’s burden to demonstrate that the error was
harmless.
7 Because we find Booker statutory error in Morgan’s sentence, and hold that
the government has failed to demonstrate that such error was harmless, we vacate
Morgan’s sentence and remand the case to the district court for resentencing
consistent with Booker.
VACATED AND REMANDED.