                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           JULY 21, 2005
                            No. 04-14608
                                                         THOMAS K. KAHN
                        Non-Argument Calendar
                                                              CLERK
                      ________________________

                   D.C. Docket No. 04-00052-CR-1-1

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                  versus

COURTNEY ANTHONY GORDON,

                                                    Defendant-Appellant.

                     __________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     _________________________

                             (July 21, 2005)



Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
      Courtney Anthony Gordon appeals his sentence imposed after pleading

guilty to prohibited transactions involving firearms, in violation of 18 U.S.C

§ 924(a)(1)(A). Gordon asserts the district court erred in sentencing him under a

mandatory Guidelines system, in violation of United States v. Booker, 125 S. Ct.

738 (2005). We affirm Gordon’s sentence.

                                 I. DISCUSSION

      Because Gordon raised a Blakely v. Washington, 124 S. Ct. 2531 (2004),

objection in the district court, we review his sentence de novo, but will reverse

only for harmful error. See United States v. Paz, 405 F.3d 946, 948 (11th Cir.

2005) (citation omitted). We have clarified there are two types of Booker error:

(1) Sixth Amendment, or constitutional, error based upon sentencing

enhancements, imposed under a mandatory Guidelines system, neither admitted by

the defendant nor submitted to a jury and proven beyond a reasonable doubt; and

(2) statutory error based upon sentencing under a mandatory Guidelines system.

United States v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir. 2005).

A.    Constitutional Error

      There is no Sixth Amendment error under Booker where the defendant has

admitted to facts later used by the district court to enhance a sentence. Id. at 1330.

The district court committed no Sixth Amendment error because Gordon explicitly

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did not object at sentencing to the court’s findings regarding the number of

firearms he purchased. See id. (concluding sentence enhancement based on drug

quantity did not violate Booker where the defendant did not dispute the facts in the

PSI). In fact, when discussing at sentencing the number of firearms Gordon

purchased, Gordon’s counsel explicitly stated he was not objecting to the number

of guns for which the PSI and the court determined Gordon was responsible.

Thus, the court’s determination of the number of firearms Gordon purchased did

not result in a Sixth Amendment violation under Booker.

B.    Statutory Error

      Even in the absence of a Sixth Amendment violation, Booker error exists

where the district court imposes a sentence under a mandatory Guidelines system.

Id. at 1330–31. The district court sentenced Gordon under a mandatory

Guidelines system, thus statutory error exists. See id. “A non-constitutional 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. 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.

Mathenia, 11th Cir., 2005, __ F.3d __ (No. 04-15250, May 23, 2005) (internal




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quotation marks and brackets omitted). The Government has the burden of

showing the error was harmless. Id.

      During sentencing, the district court referred to its belief of the mandatory

nature of the Guidelines by stating: “I do think I am required to give you a

[G]uideline sentence.” Following sentencing, however, the district court, in its

order denying Gordon’s motion for emergency bond, explicitly stated it: “would

not impose a lower sentence, even given an opportunity to do so following a

remand precipitated by Booker.” Viewing the proceedings in their entirety, the

court’s later statement shows “with fair assurance that the sentence was not

substantially swayed by the error.” Accordingly, the Government has met its

burden of showing the Booker statutory error of sentencing Gordon under a

mandatory Guidelines scheme was harmless.

                               II. CONCLUSION

      There was no Booker constitutional error because Gordon admitted the facts

used in imposing his sentence. Additionally, the Government has met its burden

of showing the Booker statutory error of sentencing Gordon under a mandatory

Guidelines scheme was harmless.

      AFFIRMED.




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