                                                              [DO NOT PUBLISH]


                     IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT           FILED
                           ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                 JUNE 23, 2005
                                   No. 04-14138
                                                               THOMAS K. KAHN
                              Non-Argument Calendar
                                                                   CLERK
                           ________________________
                        D. C. Docket No. 04-20050-CR-DLG


UNITED STATES OF AMERICA,
                                                          Plaintiff-Appellee,

                                       versus


JOHN FREDDY RINCON-CASTRILLON,
                                                          Defendant-Appellant.
                            ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           _________________________
                                  (June 23, 2005)

                        ON PETITION FOR REHEARING

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      We withdraw our previous order issued on May 12, 2005, and replace it

with this opinion.
      Since no member of this panel nor other Judge in regular active service on

the Court has requested that the Court be polled on rehearing en banc, the petition

for rehearing en banc filed by Appellant, John Freddy Rincon-Castrillon, is

DENIED. See Fed. R. App. P. 35. The petition for panel rehearing is GRANTED.

Upon rehearing, we vacate our original opinion, United States v. John Freddy

Rincon-Castrillon, No. 04-14138 (11th Cir. Mar. 18, 2005) and substitute the

following.

      Rincon-Castrillon argues that the district court violated his constitutional

rights in considering Rincon-Castrillon’s prior convictions when determining his

sentence. Rincon-Castrillon also argues that we should remand to the district

court for re-sentencing because the sentencing guidelines are advisory under

United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).

      We have explained that 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) statutory error–being sentenced under a sentencing guidelines scheme that

is mandatory. United States v. Shelton, 400 F.3d 1325, 1330–31 (11th Cir. 2005).

A.    Sixth Amendment Error

      Since Rincon-Castrillon raised his Blakely v. Washington, 542 U.S. __, 124

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S. Ct. 2531 (2004), ( now Booker) argument before the district court, we review

his Booker claims for harmless error. See United States v. Paz, 405 F.3d 946, 948

(11th Cir. 2005). Constitutional error must be disregarded if the error is harmless

beyond a reasonable doubt. United States v. Candelario, 240 F.3d 1300, 1307

(11th Cir. 2001). In the instant case, we find no constitutional Booker error, so we

need not reach whether the error is harmless beyond a reasonable doubt.

      In Booker, the Supreme Court “left undisturbed its holding in

[Almendarez-Torres v. United States, 523 U.S. 224, 227, 118 S. Ct. 1219, 1233

(1998)], that recidivism is not a separate element of an offense that the

government is required to prove beyond a reasonable doubt.” United States v.

Orduno-Mireles, 405 F.3d 960, 962 (11th Cir. 2005). Moreover, the Court

reaffirmed Apprendi’s holding that “[a]ny fact (other than a prior conviction),

which is necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” Id. Accordingly, in

Orduno-Mireles we observed that “the Court’s holding in Booker . . . is not

implicated when a defendant’s sentence is enhanced based on a prior conviction.”

Id.

      To the extent that the Supreme Court’s recent decision in Shepard arguably

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undermined Almendarez-Torres, that decision does not undermine our outcome

here. See Shepard v. United States, __ U.S. __, 125 S. Ct. 1254 (2005). At his

change of plea hearing, Rincon-Castrillon admitted the underlying fact of his prior

conviction for trafficking cocaine and that he was sentenced to 15 years

imprisonment for that conviction. Accordingly, the sentencing court did not

resolve disputed facts, but based its sentence on admitted facts. See Shepard, 125

S. Ct. at 1263; see also United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.

2005); Shelton, 400 F.3d at 1330. Therefore, in this case, we are not presented

with an opportunity to determine the implications and reach of Shepard.

      Because Almendarez-Torres remains good law, the district court did not err

in finding that Rincon-Castrillon should receive an enhancement based on his

prior conviction. Thus, we conclude that the district court’s use of prior

convictions to enhance Curtis’s sentence did not violate the Sixth Amendment.

B.    Statutory Error

      Although the district court did not violate the Sixth Amendment in

sentencing Rincon-Castrillon, it did commit a statutory Booker error. Due to the

nature of the Supreme Court’s Booker remedy, we have concluded that a district

court has committed Booker error whenever it sentences a defendant under a

mandatory guidelines scheme, even in the absence of a Sixth Amendment error.

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Shelton, 400 F.3d at 1330–31.

      When an error is nonconstitutional, it is harmless if it does not affect the

substantial rights of the parties. See 28 U.S.C. § 2111; United States v. Guzman,

167 F.3d 1350, 1353 (11th Cir. 1999). “[A] nonconstitutional error requires

reversal only if it resulted in actual prejudice because it had substantial and

injurious effect.” Guzman, 167 F.3d at 1353 (internal quotations and citation

omitted). The government bears the burden of showing that the error did not

affect Rincon-Castrillon’s substantial rights. United States v. Fern, 155 F.3d

1318, 1327 (11th Cir. 1998). “The non-constitutional harmless error standard is

not easy for the government to meet.” United States v. Mathenia, __F.3d__, No.

04-15250, 2005 WL 1201455 at *2 (11th Cir. May 23, 2005). Here, the

government has failed to meet its burden.

      In this case, without opposition from the government, the district court

granted Rincon-Castrillon a full three-level departure for acceptance of

responsibility and then imposed a sentence at the lowest end of the mandatory

guidelines range. We cannot say with fair assurance that the sentence would not

have been lower if the district court had considered the guidelines advisory instead

of mandatory. Therefore, the government has failed to show that district court’s

error did not have a substantial and injurious effect on Rincon Castrillon’s

                                           5
sentence.

      For the foregoing reasons, we VACATE Rincon-Castrillon’s sentence and

REMAND to the district court for re-sentencing consistent with the Supreme

Court’s decision in Booker.

      SENTENCE VACATED and REMANDED.




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