United States v. Kevin Patrick Szabo

Eleventh Circuit

United States v. Kevin Patrick Szabo

143 F. App'x 287

CourtCourt of Appeals for the Eleventh Circuit

DecidedSeptember 9, 2005

Docket04-13492 & 04-13581; D.C. Docket 03-00218-CR-CB

StatusUnpublished

Cited by3 cases

This text of 143 F. App'x 287 (United States v. Kevin Patrick Szabo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Kevin Patrick Szabo, 143 F. App'x 287 (11th Cir. 2005).

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Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

This appeal of Kevin Patrick Szabo regarding the imposition of his sentence is on remand from the Supreme Court of the United States for further consideration in the light of United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Szabo v. United States, — U.S. -, 125 S.Ct. 1998, 161 L.Ed.2d 853 (2005). We previously affirmed Szabo’s sentence. United States v. Szabo, 127 Fed.Appx. 473 (11th Cir.2004). After reconsideration, we vacate Szabo’s sentence and remand this case to the district court for resentencing.

Szabo, a federal prisoner convicted on two counts of bank robbery, appealed the imposition of a sentencing enhancement under section 2B3.1(b)(2)(F) of the United States Sentencing Guidelines for making a threat of death. Szabo argued, under Blakely v. Washington, 524 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), that the admissions he made in his plea agreements that during the robberies he had told the bank tellers “ T have a gun’ (or words to that effect)” were insufficient to prove that he had made a threat of death. Because Szabo’s admissions were sufficient to support the enhancement and this Court had held that Blakely did not apply to the federal sentencing guidelines, we affirmed Szabo’s sentence.

On remand, Szabo does not argue that his admissions were insufficient to support the sentencing enhancement for making a *288 threat of death. Szabo challenges only the imposition of his sentence under a mandatory guideline system. Because Szabo objected to his sentence on the grounds of Blakely, he properly preserved this objection. See United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir.2005). We review Szabo’s Booker objection, therefore, to determine if the error was harmless. Id. Statutory Booker 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.” Id. at 1292 (internal quotation marks and citation omitted). The government bears the burden to show that the error was harmless. Id.

The government has not established that the error did not affect Szabo’s sentence or “had but very slight effect.” The sentence, therefore, is vacated and this case remanded to the district court for resentencing.

VACATED AND REMANDED.

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

This appeal of Kevin Patrick Szabo regarding the imposition of his sentence is on remand from the Supreme Court of the United States for further consideration in the light of United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Szabo v. United States, — U.S. -, 125 S.Ct. 1998, 161 L.Ed.2d 853 (2005). We previously affirmed Szabo’s sentence. United States v. Szabo, 127 Fed.Appx. 473 (11th Cir.2004). After reconsideration, we vacate Szabo’s sentence and remand this case to the district court for resentencing.

Szabo, a federal prisoner convicted on two counts of bank robbery, appealed the imposition of a sentencing enhancement under section 2B3.1(b)(2)(F) of the United States Sentencing Guidelines for making a threat of death. Szabo argued, under Blakely v. Washington, 524 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), that the admissions he made in his plea agreements that during the robberies he had told the bank tellers “ T have a gun’ (or words to that effect)” were insufficient to prove that he had made a threat of death. Because Szabo’s admissions were sufficient to support the enhancement and this Court had held that Blakely did not apply to the federal sentencing guidelines, we affirmed Szabo’s sentence.

On remand, Szabo does not argue that his admissions were insufficient to support the sentencing enhancement for making a *288 threat of death. Szabo challenges only the imposition of his sentence under a mandatory guideline system. Because Szabo objected to his sentence on the grounds of Blakely, he properly preserved this objection. See United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir.2005). We review Szabo’s Booker objection, therefore, to determine if the error was harmless. Id. Statutory Booker 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.” Id. at 1292 (internal quotation marks and citation omitted). The government bears the burden to show that the error was harmless. Id.

The government has not established that the error did not affect Szabo’s sentence or “had but very slight effect.” The sentence, therefore, is vacated and this case remanded to the district court for resentencing.

VACATED AND REMANDED.

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