                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           AUGUST 15, 2005
                             No. 04-16200                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 04-20021-CR-AJ

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                  versus

JOHN MANUEL BOLLEA,

                                                         Defendant-Appellant.

                          __________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                           __________________

                            (August 15, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:
       Appellant John Manuel Bollea1 appeals his 6-month sentence imposed after

he pled guilty for attempting to travel in foreign commerce and engage in a

commercial sex act with a minor child, in violation of 18 U.S.C. §§ 2423 (c) and

(e). On appeal, Bollea argues that in light of Apprendi/Blakely/Booker his sentence

is unconstitutional because the sentence was rendered under mandatory guidelines,

while the district court expressed reservations over the sentence, and because the

court applied an enhancement that was not found by a jury nor pled to by Bollea.

       In Apprendi v. New Jersey, the United States Supreme Court held that

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S. Ct. 2348, 2363-64

147 L. Ed. 2d 435 (2000). In Blakely v. Washington, the Supreme Court reversed

an upward departure and held that the relevant “‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. 296, __,

124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403 (2004).

       In Booker, a case involving Blakely’s application to the guidelines, the


       1
        Bollea is currently out on bond awaiting this appeal. The district court originally set the
surrender date for May 27, 2005. Bollea filed a motion to extend the surrender date. The motion
was granted on April 6, 2005, extending the surrender date to September 23, 2005. We grant the
motion to expedite the appeal and issue this opinion.

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Supreme Court held that “the Sixth Amendment as construed in Blakely does apply

to the Sentencing Guidelines.” 543 U.S.__, 125 S. Ct. 738, 746, 160 L. Ed. 2d

621 (2005). The Court also held that, in light of its holding that Blakely does apply

to the guidelines, 18 U.S.C. § 3553(b)(1) (requiring a sentence within the guideline

range, absent a departure) and 18 U.S.C. § 3742(e) (establishing standards of

review on appeal) must be severed and excised from the guidelines, rendering the

guidelines merely advisory. Id. at __, 125 S.Ct. at 756-57. The Court held,

however, that district courts still must consider the guidelines. Id. at __, 125 S.Ct.

at 757, 764.

      In reviewing Booker cases, we must first determine whether there is a

preserved objection. See United States v. Dowling, 403 F.3d 1242, 1246 (11th

Cir. 2005). In Dowling, we held that a defendant must make an objection (1) to

Apprendi or its progeny, or (2) to challenge the district court’s finding of

sentencing facts that were not found by a jury or pled to by a defendant. Id. Here,

at sentencing, Bollea objected to the application of an enhancement that was

neither pleaded to nor alleged in the indictment, and, therefore, he has properly

preserved his objection. Where a defendant timely raised a Blakely objection in the

district court, we review the claim on appeal de novo, but reverse only for harmful

error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).



                                           3
        The standard for harmless error depends on the type of error that is alleged,

i.e. whether the district court committed constitutional error or statutory error.

United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). A constitutional

error occurs when there is an extra-verdict enhancement that results in a guidelines

range that is binding on the district court. Id. at 1291. A statutory violation occurs

when, in the absence of a Sixth Amendment enhancement violation, the district

court sentences under a mandatory guidelines scheme. Id. We have held that

“constitutional errors are harmless where the government can show, beyond a

reasonable doubt, that the alleged error did not contribute to the defendant’s

ultimate sentence,” and a statutory error is harmless if it is determined that the

proceedings in their entirety did not affect the sentence “or had but a very slight

effect.” Id. at 1291-92 (quoting United States v. Hornaday, 392 F.3d 1306, 1315

(11th Cir. 2004)).

        Here, Bollea made an objection to an extra-verdict enhancement that was

made because the offense was a violation of chapter 117 of Title 18, United States

Code.2 However, the sections that Bollea pled guilty to are contained within



        2
          Bollea contends that the three-level enhancement was based on a violation of a particular chapter
of the Code, and also contends that this violation was neither alleged in the indictment nor did Bollea plea
guilty to that violation. U.S.S.G. § 2A3.4(b)(6) (2003) allows for a three-level increase when the
violation is of chapter 117 of Title 18, United States Code. Bollea pled guilty to violating 18 U.S.C.
§ 2423(e), for attempting to violate § 2423(c). These subsections are contained in chapter 117, which is
entitled “Transportation for Illegal Sexual Activity and Related Crimes.”

                                                      4
chapter 117, and Bollea does not dispute this fact. See Shelton, 400 F.3d at 1329

(holding that failure to make a valid objection to the underlying facts in the PSI or

at sentencing is an admission for Booker purposes). Therefore, Bollea has not

made a valid Sixth Amendment claim. Nevertheless, the court applied the

enhancement under mandatory guidelines. See Mathenia, 409 F.3d at 1291

(holding that a statutory violation occurs when a defendant is sentenced under

mandatory guidelines, even in the absence of a Sixth Amendment violation). Thus,

we will apply the Booker statutory harmless error standard in determining whether

the error was harmless.

      In Mathenia, the defendant pled guilty to knowingly possessing and

distributing child pornography. 409 F.3d at 1290. At sentencing the district court

imposed a total offense level of twenty-nine and a criminal history category of I.

Id. The district court sentenced defendant to 96 months in prison, and stated that

the sentence would be the same even if the guidelines were not mandatory. Id. We

held that the district court’s application of the guidelines in a mandatory scheme

did not affect the sentence, or had but a slight effect, because the district court

stated that the sentence would be the same if the guidelines were advisory. Id. at

1292-93.

      Here, the district court made a materially distinguishable comment. In the



                                            5
course of Bollea’s Blakely objection and sentencing, the district court said, “I am

stating that there is a possibility that I would impose a sentence that did not require

incarceration . . . if the Guidelines were not applicable, and if I had complete and

unfettered sentencing authority as it existed before the Guidelines came into

being.” The district court made a statement that, but for the mandatory nature of

the guidelines, it would consider a lesser sentence of incarceration or no

incarceration at all. Therefore, we conclude from the record that the district court

committed a harmful error that had more than a slight effect on Bollea’s sentence.

Accordingly, we vacate Bollea’s sentence and remand this case for resentencing.

      VACATED AND REMANDED.




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