                                                          [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                August 25, 2005
                                 No. 05-10557
                                                              THOMAS K. KAHN
                             Non-Argument Calendar                CLERK
                           ________________________

                        D. C. Docket No. 04-00138-CR-CG

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

      versus

KELONE LEVESE HOLMES,

                                                              Defendant-Appellant.


                           ________________________

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

                                 (August 25, 2005)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Kelone Levese Holmes, through counsel, appeals his conviction and 57-

month sentence for possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). On appeal, Holmes first argues that, in light of United States

v. Booker, 125 S.Ct. 738 (2005), the district court erred in sentencing him pursuant

to a mandatory guidelines system. He also argues that the district court committed

a constitutional Booker error by enhancing his sentence based on his possession of

a firearm in connection with another felony offense, where that enhancement

involved judicial determination of facts neither charged in the indictment nor

admitted by Holmes.

      Second, although Holmes admits that under our caselaw, the fact that the

firearm previously traveled in interstate commerce satisfies the interstate

commerce element of 18 U.S.C. § 922(g)(1), he argues that because the

Constitution does not provide Congress with a general police power, there must be

more than a minimal connection between criminal activity and interstate

commerce, relying on United States v. Lopez, 514 U.S. 549 (1995), United States

v. Morrison, 529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000).

Booker

      In Booker, the Supreme Court held that the Federal Sentencing Guidelines

violate the Sixth Amendment right to a jury trial to the extent that they permit a

judge, under a mandatory guidelines system, to increase a defendant’s sentence

based on facts that are neither found by a jury nor admitted by the defendant.



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Booker, 125 S.Ct. at 746-56. In a separate majority opinion, the Court in Booker

concluded that, to best preserve Congressional intent, the appropriate remedy was

to excise two specific sections—18 U.S.C. § 3553(b)(1) and 18 U.S.C. § 3742(e) –

thereby rendering the Sentencing Guidelines advisory. 125 S.Ct. at 764. The

Supreme Court noted, however, that courts must continue to consult the guidelines,

together with the factors listed in 18 U.S.C. § 3553(a).1 Id.

       We have explained that there are two types of Booker error: (1) Sixth

Amendment error based upon sentencing enhancements 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, 1329-31 (11th Cir. 2005). 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.

       When, as here, a defendant raises an objection to the constitutionality of the

guidelines in the district court , both his statutory and constitutional Booker claims

are preserved and we review the case de novo, reversing only for harmful error.

United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). Constitutional Booker


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          These factors include, inter alia, the nature and circumstances of the offense, the history
and characteristics of the defendant, the need for adequate deterrence, protection of the public, the
pertinent Sentencing Commission policy statements, and the need to avoid unwarranted sentencing
disparities. See 18 U.S.C. § 3553(a).

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error will be disregarded as harmless only where the government clearly

demonstrates, beyond a reasonable doubt, that the error did not contribute to the

sentence obtained. Id. Statutory Booker error will be harmless if, viewing the

proceedings in their entirety, we can say with fair assurance that the sentence was

not substantially swayed by the error or the error had but very slight effect. United

States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005). This standard for

proving statutory Booker error harmless is “not easy for the government to meet.”

Id. at 1292.

      Here, the district court erred in applying the guidelines as mandatory.

Shelton, 400 F.3d at 1329-31. This error was not harmless. The district court did

not indicate whether it would have imposed a different sentence under an advisory

guidelines system. While the government points to the district court’s statement

that a downward departure was not appropriate in this case, we have held that the

district court’s refusal to grant a downward departure does not render statutory

Booker error harmless. United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir.

2005). Furthermore, though the government points out that the district court

considered some of the factors set forth in 18 U.S.C. § 3553(a) and stated that the

sentence addressed the seriousness of the offense, we have also held that merely

expressing approval of a sentence produced by the mandatory guidelines system



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does not settle whether the court would have given the defendant a lesser sentence

under an advisory regime. United States v. Rush, No. 04-14381, 2005 U.S. App.

LEXIS 15667 at *9 (11th Cir. July 28, 2005). In short, the district court’s

statements at sentencing are not sufficient to show harmless error because the

district court was following binding authority stating that it had to follow the

guidelines. The district court may have imposed an even lower sentence had the

guidelines been merely advisory, and the government did not meet the difficult

burden of proving that the error was harmless. See Mathenia, 409 F.3d at 1292.

Accordingly, we vacate and remand Holmes’s sentence for re-sentencing. See Id.

at 1291-92. Any constitutional error will be remedied at resentencing when the

district court sentences Holmes under the post-Booker advisory guidelines system.

Constitutional Challenge to 18 U.S.C. § 922(g)

      We review preserved constitutional challenges to statutes de novo. United

States v. Dupree, 258 F.3d 1258, 1259 (11th Cir. 2001). Section 922(g) provides:

      It shall be unlawful for any person–(1) who has been convicted in any
      court of, a crime punishable by imprisonment for a term exceeding
      one year . . . to ship or transport in interstate or foreign commerce, or
      possess in or affecting commerce, any firearm or ammunition; or to
      receive any firearm or ammunition which has been shipped or
      transported in interstate or foreign commerce.

18 U.S.C. § 922(g). We have upheld § 922(g) against a constitutional challenge

based on the Supreme Court’s decision in Lopez. United States v. McAllister, 77

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F.3d 387, 388 (11th Cir. 1996). In McAllister, we held that the statute was facially

valid, and that, “[b]ecause the government demonstrated that the firearm possessed

by McAllister previously had traveled in interstate commerce, the statute is not

unconstitutional as applied to him.” Id. at 390. We likewise rejected a later

constitutional challenge to the statute based on Morrison. Dupree, 258 F.3d at

1259. In that case, we held that “Morrison does not change the holding in

McAllister and that § 922(g) is a constitutional exercise of Congress’s commerce

power.” Id. at 1259. Where a panel of this Court has addressed an issue of law,

“each succeeding panel is bound by the holding of the first panel . . . unless and

until that holding is overruled en banc, or by the Supreme Court.” United States v.

Hogan, 986 F.2d 1364, 1369 (1993). As prior panels have rejected Holmes’s

constitutional challenge to § 922(g)(1), we affirm as to this issue.

                                     Conclusion

      Upon a review of the record and the parties’ briefs, we vacate and remand

Holmes’s sentence consistent with Booker and affirm Holmes’s conviction as to

his constitutional challenge to 18 U.S.C. § 922(g).

      VACATED AND REMANDED IN PART, AFFIRMED IN PART




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