                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                                 JUNE 6, 2005
                                No. 04-14116                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                         D.C. Docket No. 04-00020-CR-1

UNITED STATES OF AMERICA,
                                                          Plaintiff-Appellee,

      versus

CORY LAMONT CARROLL,

                                                   Defendant-Appellant.
                         __________________________

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

                                   (June 6, 2005)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Appellant pled guilty to possession of a firearm by a convicted felon, a

violation of 18 U.S.C. § 922(g)(1), and the court sentenced him to prison for a

term of 70 months. He now appeals his sentence, contending that Blakely v.
Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004), and the Sixth Amendment

precluded the district court from enhancing his offense level based on a fact that

he did not admit as true. In United States v. Booker, 543 U.S. ___, 125 S.Ct. 738,

(2005), the Supreme Court made Blakely’s rationale applicable to the Sentencing

Guidelines.

      The presentence report (PSI) set appellant’s base offense level at 20

pursuant to U.S.S.G. § 2K2.1(a)(4), and, based on information provided by the

ATF—that the firearm appellant possessed had been stolen—the report added two

points to the base offense level pursuant to U.S.S.G. § 2K2.1(b)(4). Citing

Blakely, appellant objected to this upward adjustment on the ground that he had

not admitted, and would not admit, that the firearm was stolen. The ADDENDUM

to the PSI noted the objection. Appellant repeated his Blakely objection at the

sentencing hearing, Record, Vol. 2 at 2, and the court noted that he had

“preserved [the objection] for appeal.” Id. At 3.

      United States v. Davis, 2005 WL 1033422 (11th Cir. (Ga.)), teaches that “we

[must] reverse [the defendant’s sentence] and remand [the case for resentencing]

unless the Government can demonstrate that the error was harmless beyond a

reasonable doubt . . . that the error complained of did not contribute to the

sentence.” Id. In this case, the Guidelines sentence range–-including the

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challenged two-level upward adjustment—called for a term of imprisonment of 63

to 78 months; appellant’s sentence falls one month below the midpoint of this

range. The sentencing transcript informs us that the Blakely/Booker error did not

contribute to the sentence in this case. After taking appellant’s considerable

criminal history into account, the court stated: “I have imposed the sentence

because I do believe, under all the facts and the history, this whole situation, that

this meets the sentence objective of punishment, deterrence and incapacitation.”

Record, Vol. 2 at 12. Although the court did not cite 18 U.S.C. § 3553(a)(2), its

sentence reflected the sentencing purposes § 3553(a)(2) sets forth, i.e., the very

sentencing purposes the court would have to consider anew if we vacated

appellant’s sentence and remanded the case for resentencing.

      AFFIRMED.




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