                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                               OCTOBER 4, 2005
                                No. 05-10976                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                       D. C. Docket No. 04-00217-CR-1-1

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                      versus

JEFFERY WORTHY,
a.k.a. Jeffrey Kenneth Worthy,

                                                            Defendant-Appellant.


                          ________________________

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

                                 (October 4, 2005)

Before ANDERSON, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Jeffery Worthy appeals his 300-month sentence for carjacking, in violation
of 18 U.S.C. § 2119. The district court enhanced his sentence pursuant to U.S.S.G.

§ 4B1.1 based on his status as a career offender. On appeal, Worthy first argues

that the Supreme Court’s decision in United States v. Booker, 543 U.S.___, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005), requires that he be re-sentenced, as the district

court both sentenced him pursuant to a mandatory guidelines scheme and enhanced

his sentence based upon factual findings neither admitted by him nor found by a

jury beyond a reasonable doubt. Second, Worthy argues that, under Booker, the

district court imposed an unreasonable sentence because it failed to consider the

factors set forth at 18 U.S.C. § 3353(a).

                                            I.

      Because Worthy timely raised an objection, pursuant to Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in the district

court, we review his Blakely/Booker claim on appeal de novo, but reverse only for

harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (citation

omitted). There are two harmless error standards, one that applies to Booker

constitutional errors, and one that applies to Booker statutory errors. United States

v. Mathenia, 409 F.3d 1289, 1291(11th Cir. 2005). “[C]onstitutional errors are

harmless where the government can show, beyond a reasonable doubt, that the

error did not contribute to the defendant’s ultimate sentence.” Id. (citation



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omitted). In contrast, Booker statutory errors are subject to the less demanding

non-constitutional error test. Id. at 1292. 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. (citations

omitted). The government has the burden of proof under both standards. See id.

Upon review of the record and consideration of the parties’ briefs, we discern no

reversible error.

      A Booker constitutional error exists when a defendant’s sentence is

enhanced based solely on judicially found facts, other than prior convictions,

neither admitted by the defendant nor found by the jury. Paz, 405 F.3d at 948;

United States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir. 2005). Here,

the district court enhanced Worthy’s 300-month sentence based on prior

convictions. Such an enhancement does not constitute a Sixth Amendment

violation under Booker. See Gallegos-Aguero, 409 F.3d at 1276. Contrary to

Worthy’s suggestion, the Supreme Court’s decision in Shepard v. United States,

__ U.S. __, 125 S.Ct. 1254, 1262, 161 L.Ed.2d 205 (2005) did not change this rule,

but rather cited the rule with approval.



                                           3
      In contrast, a Booker “statutory error occurs when the district court

sentences a defendant ‘under a mandatory [g]uidelines scheme, even in the absence

of a Sixth Amendment enhancement violation.’” Mathenia, 409 F.3d at 1291.

Under this standard, the government has the burden to show that the error did not

affect, or had but a very slight effect on, the sentence. Id. at 1292. In determining

whether the government has met this burden, we carefully review the PSI and the

sentencing hearing transcript. Gallegos-Aguero, 409 F.3d at 1277.

      In Mathenia, we held the district court’s Booker statutory error harmless

based on comments from the district court that it would sentence the defendant

identically even if the federal guidelines were declared unconstitutional. Mathenia,

409 F.3d at 1292-129; see also United States v. Petho, 409 F.3d 1277, 1280 (11th

Cir. 2005) (same); United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005)

(same). Here, the district court explicitly stated that, even assuming the federal

guidelines were not mandatory, it would sentence Worthy identically. Based on

this language, and the above-cited cases, the government has met its burden in

showing that any Booker statutory error was harmless.

                                          II.

      Worthy also argues that the district court violated Booker by failing to

consider the § 3553(a) factors, thus imposing an unreasonable sentence. Upon



                                           4
review of the record and consideration of the parties’ briefs, we likewise discern no

reversible error here. The district court explicitly accounted for and expounded

upon a number of the § 3353(a) factors. For instance, the district court considered

the nature of the offenses, including Worthy’s numerous sexual assaults on the

victims, as well as Worthy’s lack of remorse and his violent criminal history,

which included a number of armed robberies and weapons offenses. Moreover, the

district court stated that it based Worthy’s sentence “upon my having seen the trial

of the case and the facts that I am aware of . . . .” thus undermining Worthy’s main

argument that the district court did not consider evidence produced at trial that he

was seeking drug treatment at the time of his arrest and had struggled with a long-

term cocaine addiction.

      AFFIRMED.




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