                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT         FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               May 6, 2005
                               No. 04-15347
                                                            THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                        D.C. Docket No. 04-00001-CR-4

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

      versus

FRANKLIN JAMES LOVE,

                                                        Defendant-Appellant.

                        __________________________

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

                                 (May 6, 2005)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

      Franklin James Love appeals his 70-month sentence for transportation of

child pornography, in violation of 18 U.S.C. § 2252A(a)(1) (2005). On appeal,
Love argues: (i) that the district court failed to resolve factual disputes regarding

the Presentence Investigation Report (“PSI”), violating Rule 32(i)(3)(B) of the

Federal Rules of Criminal Procedure ; and (ii) that the district court violated

Blakely v. Washington, 124 S.Ct. 2531 (2004) when it enhanced his sentence

based on judicially-determined facts that were neither admitted nor proven to a

jury. We need not reach Love’s Rule 32 contentions, as his preserved Blakely

(now Booker) claim requires that we vacate his sentence and remand for

resentencing.

                                  BACKGROUND

      Love pled guilty to transporting child pornogrophy, in violation of 18

U.S.C. § 2252A(a)(1), and to criminal forfeiture of the computer which he used in

transmitting the pornography, pursuant to 18 U.S.C. § 2253(a). Love’s PSI

calculated his base offense level at 17, but added a two-level increase based on a

finding that the pornography involved a minor younger than age 12, under §

2G2.2(b)(1) of the guidelines. The PSI then included an additional five-level

increase, concluding that the pornographic material was distributed to an

individual Love thought was a minor. See U.S.S.G. § 2G2.2(b)(2)(c). The PSI

recommended a further four-level increase based on a characterization of the

pornography as “sadistic” within the meaning of § 2G2.2(b)(3). Finally, the PSI

                                           2
suggested a two-level increase because a computer was used to transmit the

material, per § 2G2.2(b)(5). With the enhancements, as well as a three-level

reduction for acceptance of responsibility, the offense level stood at 27. With a

criminal history category of I, that resulted in a guidelines range of 70 to 87

months.

      Love objected to the offense-level enhancements both on factual grounds

and on the basis of Blakely, which he argued required the factual basis for the

enhancements to be proven to a jury. Though the district court adopted the PSI’s

findings of fact, the court expressed serious misgivings about the length of the

guidelines sentencing range, stating that “if there were any way for me to depart in

this case, I would.” Finding no permissible basis for a departure, the court

ultimately sentenced Love to 70 months, the minimum sentence permissible under

the guidelines. Love appealed.

                            STANDARD OF REVIEW

      Because Love made his Blakely objection before the district court,

preserving it for appellate review, we review his sentence de novo, but will reverse

only for harmful error. United States v. Riley, 250 F.3d 1303, 1307 n.5 (11th Cir.

2001).

                                   DISCUSSION

                                          3
      The Sixth Amendment requires that “any fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict . . . be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” United States v.

Booker, 125 S.Ct. 738, 756 (2005). In order to render the federal sentencing

guidelines compatible with the Sixth Amendment’s jury trial guarantee, Booker

excised the provision of the federal sentencing statute that made the guidelines

mandatory. Booker, 125 S.Ct. at 764-65. Thus, we have held that even where

there is no Sixth Amendment violation, sentencing a defendant under the prior

mandatory guidelines system, standing alone, represents statutory Booker error.

United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

      In this case, Love’s sentence was infected by both constitutional and

statutory Booker error. His offense level was increased based on judicial findings

as to the “sadistic” content of the pornography he transported, the age of those

depicted in the pornography, and the age of the recipient of the pornography.

Love admitted none of those facts, nor were they proven to a jury. Furthermore,

though Love admitted the use of a computer, the sentence enhancement based on

transmitting the pornography via computer was administered under a mandatory

guidelines system.

                                           4
      Because Love has preserved his Booker claim, we must reverse unless we

find the Booker error harmless beyond a reasonable doubt. United States v. Paz,

No. 04-14829, 2005 U.S. App. LEXIS 5380 at *4-5 (11th Cir. April 5, 2005). The

government’s brief concedes that in light of the district court’s express desire to

impose a less severe sentence than the guidelines mandated, the error is not

harmless. As such, we vacate the district court’s judgment and remand for

resentencing.

      VACATED AND REMANDED.




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