                                                       [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                  FILED
                        ________________________
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                  No. 03-15931                 July 27, 2005
                              Non-Argument Calendar        THOMAS K. KAHN
                            ________________________             CLERK

                      D. C. Docket No. 03-00017-CR-1-1

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                     versus

REGINALD MOLDEN,
a.k.a. Reginald Troutman,

                                                       Defendant-Appellant.

                            ________________________

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

                                 (July 27, 2005)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
      This case is before the Court for consideration in light of United States v.

Booker, 543 U.S. __, 125 S. Ct. 738, __ L. Ed. 2d __ (2005). We previously

affirmed Appellant’s conviction and 110-month sentence for being a convicted felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g). See United States v.

Molden, Case No. 03-15931, 112 Fed. Appx. 3 (11th Cir. 2004) (Table)

(unpublished) (“Molden I”). The Supreme Court vacated our prior decision and

remanded the case to us for further consideration in light of Booker. We asked for,

and have received, supplemental briefs from the parties on the effect of Booker on

this case.

      On reconsideration, we first note that Molden is entitled to preserved error

review because he objected to the sentencing enhancement, based on the semi-

automatic weapon, at sentencing. See United States v. Paz, 405 F.3d 946, 948 (11th

Cir. 2005). Thus, we will review his claim de novo, but will reverse only for a

harmful error. Id. The government bears the burden to prove that a preserved

Booker error was harmless. Id. There are two types of Booker error: (1) a Sixth

Amendment error -- that is, imposing a sentencing enhancement based on judicial

findings that go beyond the facts admitted by the defendant or found by the jury; and

(2) a statutory, or non-constitutional error -- that is, being sentenced under a

mandatory sentencing guidelines scheme that is mandatory. See United States v.

                                         2
Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005); see also United States v. Mathenia,

2005 WL 1201455, *2 (11th Cir. May 23, 2005). A Booker constitutional error is

harmless where the government can show, beyond a reasonable doubt, that the error

did not contribute to the defendant’s ultimate sentence. Paz, 405 F.3d at 948-49. A

Booker 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.”’ United States v. Hornaday, 392 F. 3d 1306, 1315 (11th Cir.

2004) (citations omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 762,

763, 66 S. Ct. 1239, 1246, 1248, 90 L. Ed. 1557 (1946)).

       According to the PSI, Molden’s base offense level was 20 under U.S.S.G.

§ 2K2.1(a)(4)(A). The probation officer recommended, and the district court

imposed, a four-level upward adjustment, pursuant to § 2K2.1(b)(5), for possessing

a firearm in connection with another felony offense (an aggravated assault on a law

enforcement officer). As the government concedes, in its supplemental letter brief,

this case involves both Booker constitutional error -- the district court enhanced

Molden’s sentence based on a fact not found by the jury or charged in the indictment1



       1
         The jury found Molden guilty of being a felon in possession of a firearm. At sentencing,
the district court made the additional finding that Molden committed an aggravated assault in the
course of the same incident.


                                                3
-- and Booker non-constitutional, or statutory, error -- after adopting the PSI and its

recommended Guidelines range, the district court treated the resulting range as

mandatory.

      Moreover, again as conceded by the government in its supplemental brief, we

cannot tell whether the district court would impose the same sentence, (1) without the

impermissible factfinding (constitutional error), or (2) under the advisory scheme now

mandated by Booker (non-constitutional error). Accordingly, the government has not

attempted to, and thus cannot, satisfy its burden to show harmlessness. Cf. United

States v. Davis,407 F.3d 1269, 1271-72 (11th Cir. 2005) (“We 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). Therefore, the Government cannot meet its burden of showing that the

mandatory application of the guidelines in violation of Davis’s Sixth Amendment

right was harmless beyond a reasonable doubt.”).

      Because the government cannot establish the Booker non-constitutional error

was harmless under the Kotteakos standard, nor can it show the constitutional error

was harmless beyond a reasonable doubt, we vacate Molden’s sentence and remand




                                          4
for resentencing consistent with Booker.2 Finally, no reversible error occurred

relating to Molden’s conviction so we reinstate our opinion as to the conviction-

related challenges he previously raised.

       OPINION REINSTATED IN PART; SENTENCE VACATED AND

REMANDED.




       2
           On remand, the district court is required to sentence Molden under an advisory
Guidelines regime, and shall consider the Guidelines range and “other statutory concerns as well,
see [18 U.S.C.] § 3553(a) (Supp.2004).” Booker, 125 S. Ct. at 757. By this order, we do not mean
to imply that on remand the district court must impose a lesser sentence. Rather, we merely hold that
the government has failed to meet its burden to show that the Booker error was harmless. We also
will not attempt to decide now whether a particular sentence below or above the Guidelines range
might be reasonable in this case, as that issue is not before us.




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