                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                               July 20, 2005
                             No. 04-16229
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                D. C. Docket No. 04-00298-CR-T-23-TBM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MAURICE ANTOINE MARION,
a.k.a. Clayton Otis Marion,
a.k.a. Jermain Powell,

                                                         Defendant-Appellant.


                       ________________________

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

                              (July 20, 2005)

Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:
      Maurice Antoine Marion appeals his conviction and sentence imposed for

possession of a firearm by a convicted felon, in violation of 18 U.S.C.

section 922(g). Marion makes two arguments on appeal. Marion argues, for the

first time on appeal, that, in enacting 18 U.S.C. section 922(g), Congress exceeded

its power under the Commerce Clause. Second, Marion argues that, under United

States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), the district court erred when

it enhanced his base offense level, under a mandatory guidelines scheme, based

upon a determination by the district court that Marion possessed a firearm in

connection with another felony offense. Because section 922(g) is constitutional,

we affirm Marion’s conviction. We vacate Marion’s sentence and remand this case

to the district court because the error in sentencing Marion was not harmless

beyond a reasonable doubt.

                                I. BACKGROUND

      On May 21, 2004, Marion was arrested while riding a bicycle after police

responded to a complaint of armed burglary and aggravated battery with a weapon.

A .38 caliber handgun was found in the front pocket of Marion’s pants. Marion,

who had two felony convictions, was charged with being a felon in possession of a

weapon in violation of 18. U.S.C. section 922(g). Marion pleaded guilty.

      At sentencing, the district court added four levels to the base offense level



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because it found that Marion possessed the firearm in connection with another

felony offense, specifically armed burglary and aggravated assault. Marion

objection to the enhancement on the basis of Blakely v. Washington, 542 U.S. ___,

124 S. Ct. 2531 (2004). The district court overruled Marion’s objection to the

enhancement and to the application of the Sentencing Guidelines and sentenced

Marion to 51 months’ imprisonment.

                           II. STANDARD OF REVIEW

      “[A] constitutional objection that is timely, . . . receives the benefit of

preserved error review.” United States v. Candelario, 240 F.3d 1300, 1305 (11th

Cir. 2001). Where an error was preserved below, we review the case de novo and,

“if error is found, it is generally subject to the harmless error analysis of

Fed.R.Crim.P. 52(a).” Id. at 1303 n.3. Rule 52(a) provides that “[a]ny error,

defect, irregularity, or variance that does not affect substantial rights must be

disregarded.” Fed. R. Crim. P. 52(a).

                                  III. DISCUSSION

      Because we have consistently upheld the constitutionality of section 922(g)

under the Commerce Clause, see, e.g., United States v. Wright, 392 F.3d 1269,

1280 (11th Cir. 2004), and United States v. Nichols, 124 F.3d 1265, 1266 (1997),

we discuss only Marion’s argument of an error in sentencing.



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      There are two types of error under Booker: (1) Sixth Amendment, or

constitutional, error based upon sentencing enhancements neither admitted by the

defendant nor submitted to a jury and proven beyond a reasonable doubt; and

(2) statutory error based upon sentencing under a mandatory guidelines system.

United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). There are also

two harmless error standards. “One of them applies to Booker constitutional

errors, the other to Booker statutory errors.” Id. Booker constitutional error is

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

not contribute to the ultimate sentence. Booker statutory error, however, is subject

to a less demanding test. Id. A non-constitutional error is harmless if, viewing the

proceedings in their entirety, the error did not affect the sentence or had only a

“very slight effect.” Id. at 1292. If the sentence was not “substantially swayed” by

the error, then the sentence is due to be affirmed in spite of the error. Id. at 2329.

      The district court erred when it enhanced Marion’s sentence under a

mandatory guidelines system. See Shelton, 400 F.3d at 1330-31. Because the

error was constitutional error, we must vacate Marion’s sentence unless the

government can show, beyond a reasonable doubt, that the error did not contribute

to the ultimate sentence. The government cannot meet its burden.

      The district court sentenced Marion in the middle of the guideline range.



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The record is ambiguous as to what sentence the district court would have imposed

had it applied the guidelines in an advisory manner. The government, therefore,

cannot show that the error in sentencing was harmless beyond a reasonable doubt.

                               IV. CONCLUSION

      Because the error in sentencing Marion was not harmless, Marion’s sentence

is

      VACATED AND REMANDED.




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