                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                           SEPTEMBER 16, 2005
                               No. 04-14095
                                                            THOMAS K. KAHN
                           Non-Argument Calendar
                                                                CLERK
                         ________________________

                     D. C. Docket No. 04-00048-CR-LAC

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                    versus

JOHN SANDERS, JR.,
a.k.a. Bubba,

                                                        Defendant-Appellant.


                         ________________________

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

                            (September 16, 2005)

Before ANDERSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant John Sanders, Jr. appeals his 135-month sentence for conspiracy
to distribute and possess with intent to distribute 5 kilograms or more of cocaine

and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(ii), (iii) and 846. On appeal, Sanders argues that, in light of United

States v. Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) and

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004),

the district court violated his Fifth and Sixth Amendment rights in enhancing his

sentence based on the determination that he was accountable for 4.8 kilograms of

crack, a drug quantity that was found by the district court and was not charged in

the indictment or expressly admitted to by Sanders. Sanders notes that the district

court stated at sentencing that it would apply the guidelines regardless of whether

they were mandatory.

      We review a defendant’s preserved constitutional challenge to his sentence

de novo on appeal but will reverse only for harmful error. United States v. Paz,

405 F.3d 946, 948 (11th Cir. 2005). There are two harmful error standards, one

that applies to constitutional Booker errors and one that applies to statutory Booker

errors. United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005).

"[C]onstitutional errors are harmless where the government can show, beyond a

reasonable doubt that the error did not contribute to the defendant's ultimate

sentence. . . ." Id. at 1291. However, "[a] non-constitutional [statutory] error is



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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." Id. at 1292.

(internal quotations omitted). The government has the burden of proof under both

standards. Id. at 1291-92. A constitutional Booker error has been committed when

a judge enhances an individual's sentence based solely on judicially found facts

pursuant to a mandatory guideline system, in violation of that individual's Sixth

Amendment right to trial by jury. Paz, 405 F.3d at 948. A statutory Booker error

has been committed "when the district court sentences a defendant ‘under a

mandatory [g]uidelines scheme, even in the absence of a Sixth Amendment

enhancement violation.'" Mathenia, 409 F.3d at 1291. (quoting United States v.

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

      In the present case, the record demonstrates that the district court sentenced

Sanders using a base offense level of 38, relying on a finding in the Presentence

Investigation Report (“PSI”) that Sanders was accountable for a drug quantity of

4.8 kilograms of crack, rather than using a base offense level corresponding to the

amounts that Sanders contends he admitted to in his plea colloquy. Sanders argues

that he objected to the PSI's conclusion both in the PSI and at the sentencing



                                           3
colloquy; however, the record shows that he only objected on the basis of Blakely.

Neither time did he explicitly state that he was only responsible for a lesser

amount of cocaine or crack. Because Sanders only objected to the district's court

use of the 4.8 kilograms of crack in calculating his sentence – and not the facts

supporting that drug quantity – he is deemed to have admitted to those facts.

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

admitted to the underlying facts, the district court did not commit a constitutional

Booker error in enhancing Sanders's sentence based on the 4.8 kilograms of crack

for which he was found to be accountable. However, the district court still

committed statutory Booker error when it sentenced Sanders under the then-

mandatory guidelines scheme. Mathenia, 409 F.3d at 1291.

      When the district court commits a statutory Booker error, the government

must prove that, when the proceedings are viewed in their entirety, the error did not

affect the sentence or had but a slight effect on the sentence. Id. at 1292. Here, the

district court stated that it would have imposed the same sentence regardless of

whether the sentencing guidelines were mandatory or advisory. The court added

that it found that this sentence "meets the goals of punishment and will act,

hopefully, as a deterrent to others who might consider similar criminal conduct."

We have held that when a district court announces an alternative sentence that



                                           4
would have been imposed if the district court had treated the guidelines as

advisory, then we know "with certainty beyond a reasonable doubt what the district

court would do upon remand." United States v. Robles, 408 F.3d 1324, 1328 (11th

Cir. 2005). When the alternative sentence is identical to the sentence under the

mandatory guidelines, the error would not change the ultimate sentence, and

therefore it is harmless. Id. See also Unites States v. Petho, 409 F.3d 1277, 1279-

80 (11th Cir. 2005). In Robles, we applied the higher standard necessary to show

harmless error for a constitutional Booker error. Robles, 408 F.3d at 1327. Like in

Robles, the district court here explicitly stated that even if the guidelines were

advisory, it would impose an identical sentence. If the more stringent standard of

harmless error is satisfied, then the less stringent standard necessary for statutory

Booker errors will also be satisfied. This then is harmless error. Accordingly, we

affirm Sanders’s sentence.

      AFFIRMED.




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