                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                           SEPTEMBER 2, 2005
                              No. 04-15604                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                   D. C. Docket No. 04-00007-CR-5-MCR

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                    versus

RICHARD A. NUNES,

                                                          Defendant-Appellant.


                        ________________________

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

                              (September 2, 2005)

Before ANDERSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:

     Richard A. Nunes appeals his 165-month sentence for assaulting three
federal officers, in violation of 18 U.S.C. §§ 111(a) and (b). The district court

enhanced his sentence, pursuant to U.S.S.G. § 4B1.1(b)(C), based on his status as a

career offender. On appeal, Nunes argues that the district court erred in sentencing

him under the then-mandatory Sentencing Guidelines. See United States v.

Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). After review, we vacate Nunes’s

sentence and remand for resentencing.

                                 I. BACKGROUND

A.    Plea Colloquy

      In a written plea agreement, Nunes pled guilty to three counts of assaulting a

federal officer. During his plea colloquy, Nunes stated that the three officers

grabbed him, that he injured the officers during an ensuing melee, but that he was

justified in doing so. Nonetheless, Nunes pled guilty “because I want to get this

over with. I need to move on with my life. . . . I made a mistake, because it takes

two to tango, because I was involved. I want to accept what I have to accept and

get on down the road.” After finding a sufficient factual basis to support Nunes’s

plea and that his plea was freely and voluntarily given, the district court accepted it

and adjudicated Nunes guilty.

B.    PSI and Sentencing

      The Presentence Investigation Report (“PSI”), set Nunes’s offense level at



                                           2
32 based on a determination that Nunes qualified as a career offender under

U.S.S.G. § 4B1.1(a). The PSI reduced Nunes’s base offense level by three levels

for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. As a career

offender under U.S.S.G. § 4B1.1(b)(C), Nunes’s criminal history category was

automatically VI. Even absent his career offender status, however, Nunes’s

criminal history category would have been VI based on his 14 criminal history

points. With a criminal history category of VI and an offense level of 29, Nunes’s

Guidelines range was 151-188 months imprisonment.

      Nunes objected to the PSI and again at sentencing, arguing that Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), rendered the Guidelines

unconstitutional, and that they thus could not be applied to him. The district court

overruled Nunes’s objections and sentenced him to 165 months’ imprisonment, the

middle of the Guidelines range.

                                  II. DISCUSSION

A.    Career Offender Status

      For the first time on appeal, Nunes argues that his October 27, 1998

conviction for unlawful restraint was not a “crime of violence” as defined in

U.S.S.G. § 4B1.2(a), and thus, that he does not qualify as a career offender.

Because Nunes did not raise the issue of his career-offender status in the district



                                           3
court, we review the argument for plain error. United States v. Burge, 407 F.3d

1183, 1186 (11th Cir. 2005).

       A defendant qualifies as a “career offender” under the Guidelines if “(1) the

defendant was at least eighteen years old at the time the defendant committed the

instant offense of conviction; (2) the instant offense of conviction is a felony that is

either a crime of violence or a controlled substance offense; and (3) the defendant

has at least two prior felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 4B1.1(a) (emphasis added).

       The Guidelines define “crime of violence” as: “any offense under federal or

state law, punishable by imprisonment for a term exceeding one year, that (1) has

as an element, the use, attempted use, or threatened use of physical force against

the person of another, or (2) . . . otherwise involves conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).1



       1
         The first application note to U.S.S.G. § 4B1.2 more specifically defines “crime of violence”
as follows:
        “Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault,
        forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and
        burglary of a dwelling. Other offenses are included as “crimes of violence” if (A)
        that offense has as an element the use, attempted use, or threatened use of physical
        force against the person of another, or (B) the conduct set forth (i.e., expressly
        charged) in the count of which the defendant was convicted . . . presented a serious
        potential risk of physical injury to another.

U.S.S.G. § 4B1.2, cmt. n. 1.


                                                 4
      Thus, “under U.S.S.G. § 4B1.2, there are two approaches for classifying an

offense as a crime of violence. The first approach is to determine whether the use,

attempted use or threatened use of physical force against another is an element of”

the crime. United States v. Searcy, – F.3d – , 2005 WL 1767649, at *3 (11th Cir.

July 28, 2005). “Alternatively, under the second approach, we must determine

whether [the crime] involves conduct that, by its nature, presents a serious potential

risk of physical injury to another.” Id.

      In this case, the attempted use or threatened use of physical force is not an

element of Nunes’s prior crime of unlawful restraint. In Illinois, the defendant

commits the offense of unlawful restraint when he “knowingly without legal

authority detains another.” 720 ILCS 5/10-3. The Illinois courts have stated that

“[a]ctual or physical force is not a necessary element of unlawful restraint as long

as an individual’s freedom of locomotion is impaired.” People v. Bowen, 609

N.E.2d 346, 361 (Ill. App. Ct. 1993).

      However, under the second approach, the crime of unlawful restraint is one

that “by its nature, presents a serious potential risk of physical injury to another.”

Searcy, 2005 WL 1767649, at *3. As the Seventh Circuit recently stated in

analyzing whether unlawful restraint was a “crime of violence” for purposes of

U.S.S.G. § 4B1.1, “[a] risk of violent confrontation is inherent in a crime . . . that



                                            5
involves restraining another person against her will.” United States v. Swanson, 55

Fed.Appx. 761, 762 (7th Cir. 2002). Further, other circuits have concluded that the

similar crimes of false imprisonment and kidnapping by deception that do not have

physical force as an element nonetheless present a serious risk of physical injury,

and thus are “crimes of violence.” See United States v. Zamora, 222 F.3d 756,,

764-65 (10th Cir. 2000); United States v. Williams, 110 F.3d 50, 52-53 (9th Cir.

1997); United States v. Kaplansky, 42 F.3d 320, 324 (6th Cir. 1994) (en banc).

      Thus, the district court did not err, and certainly did not plainly err, in

determining that Nunes’s conviction for unlawful restraint constituted a “crime of

violence” for purposes of U.S.S.G. § 4B1.1.

B.    Booker

      Nunes also points out that the district court applied the pre-Booker

mandatory Guidelines scheme, and argues that his case should be remanded for

resentencing. Because Nunes timely raised a Blakely objection in the district

court, we review his Blakely, now Booker, claim de novo. United States v. Paz,

405 F.3d 946, 948 (11th Cir. 2005) (citation omitted).

      In Booker, the Supreme Court held that Blakely applied to the Sentencing

Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir. 2005).

“Under Booker, there are two kinds of sentencing errors: one is constitutional and



                                           6
the other is statutory.” United States v. Dacus, 408 F.3d 686, 688 (11th Cir. 2005).

“[T]he Sixth Amendment right to trial by jury is violated where under a mandatory

guidelines system a sentence is increased because of an enhancement based on

facts found by the judge that were neither admitted by the defendant nor found by

the jury.” Rodriguez, 398 F.3d at 1298 (emphasis omitted). The statutory error

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).

      In this case, we conclude that the district court did not violate Nunes’s Sixth

Amendment rights. First, the district court’s determination that Nunes’s unlawful

restraint crime was sufficient to support the § 4B1.1 career offender enhancement

was a question of law. Searcy, 2005 WL 1767649, at *2. Second, this Court

repeatedly has concluded that an enhancement based on prior convictions does not

constitute a Sixth Amendment violation under Booker. See, e.g., United States v.

Orduno-Mireles, 405 F.3d 960, 962 (11th Cir. 2005).

      Although there is no Sixth Amendment violation in this case, the district

court committed statutory Booker error in sentencing Nunes under a mandatory

Guidelines regime. Thus, we must determine whether the statutory error in

Nunes’s sentencing is harmless. See Paz, 405 F.3d at 948.



                                          7
      “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.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005)

(internal quotation marks and punctuation omitted). The burden is on the

government to show that the error was harmless and the standard “is not easy for

the government to meet.” Id.

      We conclude that the government has failed to meet its burden as to Nunes’s

sentence. There is no evidence in the record indicating what effect, if any,

changing from a mandatory to an advisory approach would have had on the district

court’s sentencing decision. Accordingly, “[w]e simply do not know what the

sentencing court would have done had it understood the guidelines to be advisory

rather than mandatory, and had properly considered the factors in 18 U.S.C. §

3553(a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005).

      Accordingly, we vacate Nunes’s sentence and remand his case to the district

court for resentencing. We note that the district court correctly calculated Nunes’s

Guidelines range. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.

2005) (stating that after Booker, district courts must consult the Guidelines and



                                           8
“[t]his consultation requirement, at a minimum, obliges the district court to

calculate correctly the sentencing range prescribed by the Guidelines”). Thus, on

remand, the district court is required to sentence Nunes under an advisory

Guidelines regime, and shall consider the Guidelines range of 151-188 months’

imprisonment and “other statutory concerns as well, see [18 U.S.C.] § 3553(a)

(Supp. 2004).” Booker, 125 S. Ct. at 757.2

       VACATED AND REMANDED.




       2
        We do not mean to suggest by our holding that the district court must impose any particular
sentence on remand. Rather, we merely hold that the government did not meet its burden of
showing that the Booker statutory error was harmless. We also do not attempt to decide now
whether a particular sentence might be reasonable in this case.


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