                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                      ________________________         U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            November 9, 2005
                             No. 04-15251                 THOMAS K. KAHN
                       ________________________                 CLERK

                D. C. Docket No. 04-00022-CR-4-RH-WCS


UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                                  versus

CURTIS LEE MANGO,

                                               Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________
                            (November 9, 2005)



Before BLACK, WILSON and COX, Circuit Judges.

PER CURIAM:
      Curtis Lee Mango appeals his sentence imposed after he pled guilty to

possession of controlled substances, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(iii), (C), (D) (count one), possession of a firearm in furtherance of a drug

trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) (count two), and

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2) (count three). Mango raises two arguments on appeal: (1) the district

court erred in refusing to grant a downward departure under U.S.S.G. § 4A1.3(b);

and (2) he is entitled to be resentenced in light of United States v. Booker, 125

S. Ct. 738 (2005). We lack jurisdiction to consider the district court’s denial of

Mango’s motion for downward departure, but we vacate Mango’s sentence and

remand for resentencing under Booker.

                                I. BACKGROUND

      Mango was sentenced after the Supreme Court’s decision in Blakely v.

Washington, 124 S. Ct. 2531 (2004), but before its decision in Booker. Mango’s

plea agreement contained the following language, which was intended to address

the question Blakely raised concerning the constitutionality of the Sentencing

Guidelines:

      To the extent that such a right is determined to exist, the defendant
      waives any right he may have to have any fact or issue related to
      sentencing be determined by a jury beyond a reasonable doubt. The

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      defendant consents and agrees that the Court will decide, by a
      preponderance of the evidence, all factual and legal issues that may
      impact upon a determination of the range of imprisonment under the
      United States Sentencing Guidelines. . . .

      At the plea colloquy, Mango agreed in all material respects with the

Government’s statement of the facts, which included the drug quantity involved in

his offense. At sentencing, Mango did not object to the drug quantity listed in the

PSI or to the Guidelines calculations and admitted he had three prior felony drug

convictions. Mango moved for a downward departure under U.S.S.G. § 4A1.3(b),

arguing his criminal history category substantially over-represented the

seriousness of his criminal history. The district court denied the motion.

      Mango’s base offense level for count one was 28, reflecting a total

marijuana equivalent of 456.25 kilograms involved in his offense. The base

offense level was enhanced to 37 under U.S.S.G. § 4B1.1(b) because Mango had

at least two prior felony drug convictions. It was then reduced by 3 levels for

acceptance of responsibility, resulting in a total offense level of 34. With a

criminal history category of VI, as established by U.S.S.G. § 4B1.1(b), Mango’s

Guidelines sentence for count one ranged from 262 to 327 months’ imprisonment.

Count two carried a minimum 60 month consecutive sentence. Count three, which

was grouped with count one pursuant to U.S.S.G. § 3D1.2(d), carried a statutory



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maximum of 120 months’ imprisonment. Mango was sentenced to 322 months’

imprisonment, consisting of 262 months for count one, 60 months consecutive

sentence for count two, and 120 months for count three to run concurrently.

                                 II. DISCUSSION

A. Downward Departure

      Mango argues the district court erred in denying his motion for downward

departure under U.S.S.G. § 4A1.3(b). In United States v. Winingear, 422 F.3d

1241, 1245–46 (11th Cir. 2005), this Court reaffirmed our pre-Booker precedents

establishing that, under 18 U.S.C. § 3742(a), we lack jurisdiction “to consider a

defendant’s appeal of a discretionary decision of the district court to not apply a

downward departure, so long as the district court did not incorrectly believe that it

lacked the authority to apply a departure.” Winingear, 422 F.3d at 1245 (citing

United States v. Hadaway, 998 F.2d 917, 919 (11th Cir. 1993) and United States v.

Gomez-Villa, 59 F.3d 1199, 1202 (11th Cir. 1995)). The parties agree the district

court recognized its authority to depart downward, and we may not review its

decision.

B. Booker

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

statutory. A constitutional error is “the use of extra-verdict enhancements to reach

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a guidelines result that is binding on the sentencing judge; the error is the

mandatory nature of the guidelines once the guidelines range has been

determined.” United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005)

(quotation and citation omitted). Statutory error occurs when a district court

sentences a defendant “under a mandatory Guidelines scheme, even in the absence

of a Sixth Amendment enhancement violation.” Id. at 1330–31.

      We assume plain-error review applies. Under plain-error review, we may

not vacate a sentence:

      unless there is: (1) error, (2) that is plain, and (3) that affects
      substantial rights. If all three conditions are met, an appellate court
      may then exercise its discretion to notice a forfeited error, but only if
      (4) the error seriously affects the fairness, integrity, or public
      reputation of judicial proceedings.

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied 125 S.

Ct. 2935 (2005) (quotations and citations omitted).

      1. Constitutional Error

      Mango’s sentence was enhanced based on his past convictions and the drug

quantity involved in his offense. A district court does not violate the Sixth

Amendment by relying on past convictions to enhance a defendant’s sentence.

Shelton, 400 F.3d at 1329. Further, the Sixth Amendment is not violated where a

defendant’s sentence is enhanced by facts admitted by him. Id. at 1330. Mango

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admitted the drug quantities involved in his offense when he agreed with the

Government’s statement of the facts and when he did not object to the PSI.

Accordingly, even without the express waiver of his right to have any facts related

to sentencing determined by a jury beyond a reasonable doubt, Mango’s

constitutional rights were not violated.

       2. Statutory Error

       The Government argues the waiver in Mango’s plea agreement

encompasses statutory error as well. We disagree. A plain reading of the plea

agreement shows Mango waived his right to have the facts affecting his sentence

found by a jury beyond a reasonable doubt. The plea agreement, however, does

not show Mango waived his right not to be sentenced under a mandatory

Guidelines scheme.1 Thus, Mango did not waive statutory error.

       Mango meets both the first and second prongs of plain-error review for

statutory error because he was sentenced under a mandatory Guidelines system.

Id. at 1330–31. Mango also satisfies his burden of showing the error affected his

substantial rights. At sentencing, the court said:



       1
         Mango’s plea agreement also states: “The parties acknowledge that the Sentencing
Guidelines apply. The District Court’s discretion in sentencing is limited only by statutory
provisions and the Sentencing Guidelines.” This is not an adequate expression of Mango’s intent
to waive his right not to be sentenced under a mandatory Guidelines scheme.

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      I do not make any determination of the sentence that I would impose
      in the event it were held that Blakely affects the sentencing
      guidelines. If the decision in Booker is affirmed, then the sentence I
      impose today should be reversed, and this case should come back.

The district court’s comments establish “a reasonable probability of a different

result if the guidelines had been applied in an advisory instead of binding fashion

by the sentencing judge in this case.” Id. at 1332 (quotations omitted). We

conclude the fourth prong of plain-error review is also met and exercise our

discretion to notice the error. Id. at 1333.

                                 III. CONCLUSION

      We lack jurisdiction to review the district court’s denial of Mango’s motion

for downward departure under U.S.S.G. § 4A1.3(b). However, the district court

plainly erred in treating the Guidelines as mandatory. Thus, we vacate and remand

for resentencing in light of Booker. We note the district court correctly calculated

Mango’s effective Guidelines range of 322 to 387 months’ imprisonment. See

United States v. Crawford, 407 F.3d 1174, 1178–79 (11th Cir. 2005) (stating after

Booker, district courts must consult the Guidelines and “[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 Mango according to Booker, considering the



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Guidelines advisory range of 322 to 387 months’ imprisonment and “other

statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).” Booker, 125

S. Ct. at 757.2

       AFFIRMED IN PART, VACATED AND REMANDED IN PART.




       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 Mango met his burden of showing plain
statutory error. We also do not attempt to decide now whether a particular sentence might be
reasonable in this case.

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