                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             JULY 6, 2005
                              No. 04-14263                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 04-60077-CR-JIC

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                   versus

DAVID LEE FENIMORE,

                                                         Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (July 6, 2005)

Before ANDERSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:

     David Lee Fenimore appeals his 24-month sentence for (1) knowingly
receiving and possessing an unregistered firearm, in violation of 26 U.S.C.

§ 5861(d); (2) knowingly possessing a firearm which had its serial number

removed, obliterated, or altered, and which had been shipped or transported in

interstate commerce, in violation of 18 U.S.C. § 922(k); (3) knowingly making and

altering a firearm, in violation of 26 U.S.C. § 5861(f); and (4) knowingly receiving

and possessing a unregistered firearm, in violation of 26 U.S.C. § 5861(d).

Because the government failed to demonstrate that the district court committed a

harmless Booker error, we VACATE and REMAND for resentencing.

                                I. BACKGROUND

      In 2004, a federal grand jury indicted Fenimore on four counts of firearm

violations. Pursuant to a plea agreement, Fenimore pled guilty to (1) knowingly

receiving, possessing , and transferring an unregistered silencer, in violation of 26

U.S.C. § 5861(d), (e), and § 5871, and 18 U.S.C. § 2; (2) knowingly possessing a

semiautomatic UZI 9-millimeter rifle, which had its serial number removed,

obliterated, or altered, and which had been shipped or transported in interstate or

foreign commerce, in violation of 18 U.S.C. § 922(k); (3) knowingly making a rifle

having a barrel less than 16 inches in length, in violation of 26 U.S.C. § 5861(f),

5845(a), and 5871; and (4) knowingly receiving and possessing an unregistered

short barrel rifle, in violation of 26 U.S.C. § 5861(d), § 5871, and 18 U.S.C. § 2.



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The presentence investigation report indicated that Fenimore’s guideline

sentencing range was 24 to 30 months of imprisonment based on a total offense

level of 17 and a criminal history category of I.

      Just prior to the sentencing hearing, Fenimore filed a motion to declare the

federal sentencing guidelines unconstitutional under Blakely v. Washington, 542

U.S. ____, 124 S. Ct. 2531 (2004), and the Fifth and Sixth Amendments. During

the sentencing hearing, Fenimore’s counsel argued that the guidelines were

unconstitutional but conceded that there was “absolutely nothing outside of the

indictment . . . that is going to be relied upon by the [district] [c]ourt for sentencing

purposes.” R2 at 5. The district court concluded that, under the state of the law at

that time, Apprendi/Blakely did not apply to the federal sentencing guidelines and

overruled Fenimore’s objection. The district court then sentenced Fenimore to 24

months of imprisonment for each count, to run concurrently. Although the district

court sentenced Fenimore to the low end of the applicable guideline range, the

district judge did not indicate whether he would have given Fenimore a lower

sentence had he not been constrained by the guidelines. Fenimore renewed his

objections to his sentence.

      On appeal, Fenimore argues that the federal sentencing guidelines are

unconstitutional under Blakely and contends that he is entitled to a resentencing.



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In response, the government avers that any non-constitutional error in the district

court’s application of mandatory guidelines was harmless. Specifically, the

government contends that there is no reasonable probability that the district court

would have imposed a lesser sentence under an advisory guidelines scheme

because (i) the district court was not persuaded by mitigating facts concerning

Fenimore’s role in the offense; (ii) no other mitigating facts were presented; and

(iii) the district court did not indicate that it would have imposed a lesser sentence

if not for the mandatory guidelines.1

                                       II. DISCUSSION

       While the instant case was pending on appeal, the Supreme Court rendered

its decision in United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). In

Booker, the Supreme Court held that the mandatory nature of the Sentencing

Guidelines made them incompatible with the Sixth Amendment’s guarantee to the

right to a jury trial. Id. at ___, 125 S. Ct. at 749-51. The Court concluded that

“[a]ny 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



       1
          Additionally, the government argues that Fenimore is not entitled to a resentencing because,
in a brief filed before the Supreme Court decided United States v. Booker, 543 U.S. __, 125 S. Ct.
738 (2005), Fenimore argues that he is entitled to resentencing only if the guidelines are held
facially unconstitutional, which they were not. We reject the government’s argument and construe
Fenimore’s argument as an appeal of the district court’s Booker statutory error.

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jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Id. at ___, 125 S. Ct. at 756. Additionally, the Court

invalidated two provisions of the Sentencing Reform Act of 1984 that had made

the guidelines mandatory but held that district courts must continue to take the

guidelines into account in conjunction with other sentencing goals. Id. at __,

125 S. Ct. at 764. The Court explicitly noted that both its Sixth Amendment

holding and remedial interpretation of the Sentencing Act should be applied “to all

cases on direct review.” Id. at ___, 125 S. Ct. at 769.

      Based on the Supreme Court’s holdings, we have concluded that district

courts could have commited “constitutional” and/or “statutory” errors in

sentencing defendants before Booker. The statutory error, relevant in this case,

occurs when the district court sentences a defendant “under a mandatory

Guidelines scheme, even in the absence of a Sixth Amendment enhancement

violation.” United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

      Because Fenimore preserved his objection to the district court’s “statutory”

Booker error, we review the issue de novo, but we will reverse only for harmful

error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam). We

deem a non-constitutional error harmless if, “viewing the proceedings in their

entirety,” we can “say with fair assurance” that “the error did not affect the



                                           5
[sentence], or had but very slight effect.” United States v. Mathenia, ___ F.3d ___,

___ (11th Cir. May 23, 2005) (per curiam) (mandate withheld) (citation and

quotations omitted). The government carries the burden to show that the error was

harmless. Id. We have recognized that the government’s burden is “not easy” to

meet. Id.

      In this case, the district court committed a Booker statutory error in

sentencing Fenimore under a mandatory guidelines scheme. However, even

considering the government’s arguments, we cannot determine what the district

court would have done had it understood the guidelines to be advisory. We thus

conclude that the government has not demonstrated with fair assurance that this

error had but slight effect on Fenimore’s ultimate sentence. Accordingly, the

Booker statutory error was not harmless.

                               III. CONCLUSION

      Because the government has failed to demonstrate that the district court’s

Booker statutory error was harmless, we VACATE and REMAND for

resentencing consistent with this opinion.




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