                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                            JULY 11, 2005
                             No. 04-14826                 THOMAS K. KAHN
                       ________________________                CLERK


                    D.C. Docket No. 04-20234-CR-ASG

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,
     versus


JORGE ALBERTO GODINEZ-SANTOS,

                                                         Defendant-Appellant.
                      __________________________

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


                              (July 11, 2005)

                   ON PETITION FOR REHEARING

Before TJOFLAT, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
      The Court on its own motion grants rehearing and vacates the opinion that

was issued in this case on April 19, 2005. This opinion takes the place of that one.

      Jorge Alberto Godinez-Santos appeals his fifty-seven-month sentence for

being found unlawfully in the United States after having been previously deported,

in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Godinez-Santos argues that the

district court violated his rights under the Fifth and Sixth Amendments as set out

in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and United States v. Booker, 543

U.S. ___, 125 S. Ct. 738 (2005), by increasing his offense level based on a prior

conviction when the fact of that conviction was not charged in the indictment,

found by a jury, or admitted by Godinez-Santos. He argues that Almendarez-

Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), is inapplicable and

should not be followed by this Court because it will likely be overruled by the

Supreme Court. He also contends that the district court committed a statutory

error under Booker, and, as a result, his sentence should be vacated and his case

remanded for resentencing.

      We review Apprendi issues de novo but will reverse or remand only for

harmful error. United States v. Anderson, 289 F.3d 1321, 1325–26 (11th Cir.

2002); United States v. Candelario, 240 F.3d 1300, 1306–07 (11th Cir. 2001).

                                         2
      In United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.), cert. denied,

125 S. Ct. 637 (2004), we reviewed an argument by the defendant that the district

court improperly enhanced his sentence based on four prior convictions that were

not alleged in the indictment. This Court stated: “In Almendarez-Torres v. United

States, the Supreme Court held that the government need not allege in its

indictment and need not prove beyond a reasonable doubt that a defendant had

prior convictions for a district court to use those convictions for purposes of

enhancing a sentence.” Marseille, 377 F.3d at 1257 (citing Almendarez-Torres v.

United States, 523 U.S. 224, 118 S. Ct. 1219 (1998)). In Marseille, we refused to

interpret the Supreme Court’s rationale in Apprendi as overruling Almendarez-

Torres. Id. In United States v. Camacho-Ibarquen, ___ F.3d. ___, 2005 WL

1297236 (11th Cir. June 2, 2005) (per curiam), we again affirmed that

Almendarez-Torrez remains good law, noting that it has not been overruled by

Apprendi, Blakely, or Booker. Godinez-Santos’ argument that his Fifth and Sixth

Amendment rights were violated pursuant to Booker is thus without merit.

      However, as we recognized in United States v. Shelton, 400 F.3d 1325,

1300–31 (11th Cir. 2005), a district court commits a Booker statutory error by

sentencing the defendant “under a mandatory Guidelines scheme, even in the

absence of a Sixth Amendment enhancement violation.” Because Godinez-Santos

                                          3
properly preserved this argument,1 “we review the defendant’s Booker claim in

order to determine whether the error was harmless.” United States v. Mathenia,

___ F.3d ___, 2005 WL 1201455 (11th Cir. May 23, 2005).

       “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.” Id. (quotation and marks omitted). The burden is on the

government to meet this standard. Id.

       The district court gave no indication during the Godinez-Santos’ sentencing

hearing that it would not have given him a lesser sentence had it considered the

guidelines as advisory rather than mandatory. As a result, the government has not

carried its burden of demonstrating that the Booker statutory error was harmless.

       VACATED AND REMANDED.




       1
         During his sentencing hearing, which took place before the Supreme Court’s decision in
Booker was handed down, Godinez-Santos raised the argument that his sentence was
unconstitutional under Blakely. He did the same in his initial brief to this Court. Under our
Shelton decision, that is enough to preserve and present the statutory error issue.

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