                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________             U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                 No. 04-15652                       JUNE 23, 2005
                                                                 THOMAS K. KAHN
                            Non-Argument Calendar
                                                                      CLERK
                          ________________________
                       D.C. Docket No. 04-60094-CR-WJZ


UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

      versus

LUIS CARO,

                                                         Defendant-Appellant.

                         __________________________

               Appeal from the United States District Court for the
                          Southern District of Florida
                         _________________________
                                (June 23, 2005)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      Luis Caro appeals his 87-month sentence, imposed after he pled guilty to

one count of conspiring to import one kilogram or more of heroin, in violation of
21 U.S.C. §§ 952(a), 960(b)(1)(A), and 963. On appeal, Caro maintains that,

under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403

(2004), and United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005), the

district court lacked the authority to enhance his sentence based on facts not

reflected in a jury verdict or admitted by Caro. Caro contends that the sentencing

court enhanced his offense level after determining that he possessed between three

and ten kilograms of heroin, even though that amount was not charged in the

indictment nor found by a jury beyond a reasonable doubt. Accordingly, Caro

argues that his Fifth and Sixth Amendment rights were violated.

      “[A] constitutional objection that is timely. . . receives the benefit of

preserved error review.” United States v. Candelario, 240 F.3d 1300, 1306 (11th

Cir. 2001). Because Caro objected below, both in his objections to the

presentence investigation report (“PSI”) and again at sentencing, that the district

court violated his Sixth Amendment rights under Blakely by calculating his

offense level based on an amount of drugs to which he did not stipulate, he raised

a timely constitutional objection and is entitled to preserved error review. See id.

      We review preserved constitutional errors de novo, but “will reverse only

for harmful error.” See United States v. Sanchez, 269 F.3d 1250, 1272 (11th Cir.

                                          2
2002) (en banc). Non-constitutional error is harmless when it does not affect the

substantial rights of the parties. See 28 U.S.C. § 2111; United States v. Guzman,

167 F.3d 1350, 1353 (11th Cir.1999). Under this standard, we must reverse "only

if [the error] resulted in actual prejudice because it had substantial and injurious

effect or influence" on Caro’s sentence. See id. (internal quotation marks omitted);

see also Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239 (1946).

       There was error here because Caro was sentenced under a mandatory

guidelines system.1 See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.

2005). However, when the district court sentenced Caro, it sentenced Caro in the

alternative to 87 months “strictly under the statute,” in the event that the Supreme

Court found the guidelines unconstitutional. The court's comment establishes that

the mandatory nature of the guidelines in place at the time of sentencing did not

affect Caro's sentence. See United States v. Petho, __ F.3d __, 2005 WL 1160640

(11th Cir. May 18, 2005) (finding error harmless because district court stated that it

would sentence to the same number of months if the guidelines were not binding).

Thus, we find that the Booker error was harmless.

       AFFIRMED.


       1
           There was no constitutional error in this case because Caro admitted at his change of plea
hearing the amount of drugs that was used to determine his offense level. See United States v. Petho,
__ F.3d __, 2005 WL 1160640, at 2 n.1 (11th Cir. May 18, 2005).
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