                                                                      [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT

                          -------------------------------------------          FILED
                                       No. 04-16162                   U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                 Non-Argument Calendar                     December 2, 2005
                         -------------------------------------------- THOMAS K. KAHN
                                                                              CLERK
                  D.C. Docket No. 04-00051-CR-ORL-22-DAB

UNITED STATES OF AMEIRCA,

                                                          Plaintiff-Appellee,

                                           versus

CEDRIC CULPEPPER,

                                                          Defendant-Appellant.


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                    Appeal from the United States District Court
                          for the Middle District of Florida
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                                   (December 2, 2005)


Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit Judges.

PER CURIAM:


      Cedric Culpepper appeals his 188-month concurrent sentences, imposed

after he pled guilty to drug trafficking offenses, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B) & (C). Culpepper was sentenced as a career criminal under

U.S.S.G. § 4B1.1 based on his three prior felony drug trafficking convictions,

which were not alleged in the indictment and not admitted by him. Culpepper

argues that Blakely v. Washington, 124 S.Ct. 2531 (2004), renders the Sentencing

Guidelines unconstitutional and that his sentence should have been calculated only

on those facts established by the indictment and by the guilty plea.1 No reversible

error has been shown; we affirm.

       Culpepper properly raised his Blakely claim in the district court. See

United States v. Dowling, 403 F.3d 1242, 1245 (11th Cir. 2005). We review this

issue de novo; we will reverse unless the government shows that any error was

harmless. See United States v. Robles, 408 F.3d 1324, 1327 (11th Cir. 2005).

       The district court’s application of the career offender provision, U.S.S.G.

§ 4B1.1, exposed Culpepper to an enhanced offense level and criminal history

category. But this enhancement was based solely on the fact that he had three


  1
    Culpepper also argues, for the first time on appeal, that Apprendi v. New Jersey, 120 S.Ct. 2348
(2000), renders unconstitutional 21 U.S.C. § 841(b), which sets forth the penalties for various drug
offenses based on drug quantity, because a judge at sentencing, and not a jury at trial, makes findings
about drug quantity, which determines the maximum sentence. This claim is without merit.
Culpepper was sentenced below the 20-year statutory maximum sentence permitted under
§ 841(b)(1)(C)’s “catchall provision”: no Apprendi violation occurred. See United States v.
Sanchez, 269 F.3d 1250, 1269 (11th Cir. 2001) (en banc); see also United States v. Tinoco, 304
F.3d 1088, 1096-97, 1099-1101 (11th Cir. 2002) (rejecting facial constitutional challenge to the
penalty provision of the Maritime Drug Law Enforcement Act, 46 U.S.C. § 1903(g), 21 U.S.C.
§ 960(b), which is similar to the penalty provision in § 841(b)), cert. denied, 123 S.Ct. 1484 (2003).

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previous felony drug trafficking convictions. In Almendarez-Torres v. United

States, 118 S.Ct. 1219 (1998), the Supreme Court stated that the government need

not allege in the indictment and need not prove beyond a reasonable doubt that a

defendant had a prior conviction for a district court to use that conviction to

enhance a sentence. “This conclusion was left undisturbed by Apprendi [v. New

Jersey, 120 S.Ct. 2348 (2000)], Blakely, and [United States v. Booker, 125 S.Ct.

738 (2005)].” United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005).

Thus, the district court did not violate Culpepper’s constitutional rights by

applying the § 4B1.1 enhancement based on his prior convictions. See United

States v. Gallegos-Aguero, 409 F.3d 1274, 1276-77 (11th Cir. 2005).

      But the district court did commit a statutory error under Booker. See United

States v. Dacus, 408 F.3d 686, 688 (11th Cir. 2005) (under Booker, two types of

sentencing errors exist: “one is constitutional and the other is statutory”). 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.” Shelton, 400 F.3d at 1330-31. Booker statutory errors

are subject to a less demanding harmless error test applicable to non-constitutional

errors. See United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005).




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That standard requires us to determine whether the error either did not affect the

sentence or only had a slight effect. Id.

      “The non-constitutional harmless error standard is not easy for the

government to meet.” Id. But here, the government has met its burden.       After

overruling Culpepper’s Blakely objection and adopting the findings in the

presentence investigation report, the district court denied Culpepper’s motion for a

downward departure based on his medical condition. Also important, the district

court stated that it had imposed the sentence because the career offender

enhancements “bring the sentence up enough that the . . . minimum sentence is

appropriate.” (emphasis added). Thus, the district court expressed a belief that

Culpepper’s sentence -- at the bottom of the guideline range after applying the

career offender enhancement -- was the appropriate sentence. And the district

court’s conclusions evidence an unwillingness to sentence Culpepper below the

guidelines range. These factors are enough to convince us beyond a reasonable

doubt, on this record, that the district court’s Booker error is harmless because the

court would not have imposed a lower sentence under an advisory guidelines

scheme. In other words, the government has demonstrated that the district court’s

statutory error of applying the guidelines in a mandatory fashion did not affect, or

had but a slight effect, on the sentence Culpepper received.

      AFFIRMED.

                                            4
TJOFLAT, Circuit Judge, dissenting:

      The district court sentenced Culpepper under a sentencing model that differs

materially from the model Booker prescribes. See United States v. Rodriguez, 406

F.3d 1261, 1281 (11th Cir. 2005) (Tjoflat, J., dissenting from denial of rehearing

en banc) (explaining the difference between sentencing pre-Booker and post-

Booker.) The difference in the two models is so fundamental, and so striking, that

the district judge in this case could not possibly have imagined what it would have

been like to sentence Culpepper using the new, Booker model. Having no such

idea, the judge could hardly have opined that he would have given Culpepper the

same sentences had he been using the Booker model.

      I would vacate Culpepper’s sentences and remand the case for resentencing.




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