                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                No. 04-14320                ELEVENTH CIRCUIT
                            Non-Argument Calendar              June 28, 2005
                          ________________________            THOMAS K. KAHN
                                                                   CLERK

                  D.C. Docket No. 03-00133-CR-FTM-29-SPC

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

      versus

FRANK MORGAN,

                                                        Defendant-Appellant.

                        __________________________

               Appeal from the United States District Court for the
                           Middle District of Florida
                         _________________________
                                (June 28, 2005)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Frank Morgan appeals his 151-month sentence for distribution of 5 grams or

more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2005). On appeal, he
argues that the district court committed reversible error when it: (i) enhanced his

sentence based on his prior convictions, in violation of Blakely v. Washington,

124 S.Ct. 2531 (2004) and United States v. Booker, 125 S.Ct. 738 (2005); and (ii)

enhanced his sentenced under the mandatory sentencing guidelines regime, which

Booker has since rendered advisory. We find no merit in Morgan’s first argument,

given binding Supreme Court precedent which permits district courts to rely on

prior convictions to enhance sentences. However, because Morgan has preserved

his Booker claim, and the government has not met its burden to show that the

statutory Booker error in Morgan’s sentence was harmless, we vacate his sentence

and remand the case to the district court for resentencing consistent with Booker.

                                 BACKGROUND

      Morgan pled guilty to count one of a four-count indictment, admitting that

he possessed with intent to distribute five or more grams of crack cocaine base, in

contravention of 21 U.S.C. § 841(a)(1) (2005). The Presentence Investigation

Report (“PSI”) set the base offense level at 26, and gave a two-level adjustment

for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), and a one-level

adjustment for a timely plea, pursuant to U.S.S.G. § 3E1.1(b). Taking these into

account, the adjusted offense level stood at 23. However, because Morgan’s

criminal history included a prior state robbery offense and a prior federal drug

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offense, he qualified as a career offender within the meaning of U.S.S.G. § 4B1.1.

With the career criminal classification, the PSI calculated his enhanced offense

level at 31. With a criminal history category of VI, the PSI stated that the

guidelines imprisonment range was 188 months to 235 months.

      Morgan filed several objections to the PSI, including one in which he

argued that Blakely applied to the federal sentencing guidelines. The district court

overruled that objection, but did grant a motion to reduce Morgan’s criminal

history classification from VI to IV under U.S.S.G. § 4A1.3 in order to avoid

criminal history over-representation. With a criminal history category IV and an

adjusted offense level of 31, the guidelines range stood between 151 months’ and

188 months’ imprisonment. The district court sentenced Morgan to the minimum

guidelines sentence of 151 months. Morgan timely appealed.

                            STANDARD OF REVIEW

      Because Morgan raised his constitutional objection to the district court’s

application of the Sentencing Guidelines at sentencing, we review the issue de

novo, and reverse “only if any error was harmful.” United States v. Paz, 405 F.3d

946, 948 (11th Cir. 2005). Constitutional Booker errors are harmless only where

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

contribute to the defendant’s sentence. Id. For a non-constitutional Booker error

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to be harmless, the government shoulders the somewhat lower burden of proving

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

sentence, or had “but very slight effect.” United States v. Mathenia, 04-15250,

2005 U.S. App. LEXIS 9352 at *6 (11th Cir. May 23, 2005).

            ENHANCEMENTS BASED ON PRIOR CONVICTIONS

      The Supreme Court has held that the government need not allege in the

indictment nor prove beyond a reasonable doubt the fact that a defendant had prior

convictions in order for a district court to use those convictions to enhance the

defendant’s sentence. United States v. Almendarez-Torres, 523 U.S. 224, 247

(1998); Shepard v. United States, 125 S.Ct. 1254, 1257 (2005). The Booker

decision itself confirms that the rule set forth in Almendarez-Torres remains good

law. See Booker, 125 S.Ct. at 756 (“Any 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.”) (emphasis added); see

also, United States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir. 2005)

(holding that following Booker and Shepard, “Almendarez-Torres remains the law

until the Supreme Court determines that [it] is not binding precedent.”).




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        In light of this binding precedent, we reject Morgan’s contentions that

Almendarez-Torres did not survive Booker and that the district court committed

constitutional error when it enhanced his sentence based upon prior convictions.

                           STATUTORY BOOKER ERROR

        Even in the absence of constitutional Booker error, the district court

commits statutory Booker error where it imposes a sentence under a mandatory

guidelines system. United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir.

2005). Because this error is statutory rather than constitutional, it is harmless only

if the government demonstrates that the error did not affect the sentence, or had

“but very slight effect.” Mathenia, 2005 U.S. App. LEXIS 9352 at *6.

        The parties here properly agree that there is statutory Booker error in

Morgan’s sentence because he was sentenced under the mandatory guidelines

scheme that Booker has rendered advisory. The government, however, argues that

the error is harmless because: (i) the record contains no indication that the district

court would have imposed a lesser sentence had it understood its discretion to do

so; and (ii) the district court, in ruling on Morgan’s motion for a downward

departure, stated that it while it would reduce Morgan’s criminal history category

by two levels, it would not further depart downward further on the facts of the

case.

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      The government’s first argument is misplaced, as the government bears the

burden of demonstrating that the statutory Booker error was harmless. Mathenia,

2005 U.S. App. LEXIS 9352 at *6. Indeed, the government’s burden of

establishing that a preserved error was harmless is the same standard the defendant

must meet in order to demonstrate prejudice under the third-prong of plain error

review. Id. at *7. We have held that a defendant does not meet that plain error

third-prong where the record does not permit a conclusion one way or the other as

to whether the district court would’ve imposed a lower sentence under an advisory

guidelines scheme. United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.

2005). By the same token, where the record does not permit a conclusion as to

what sentence the district court would have imposed under an advisory version of

the guidelines, the government has not satisfied it burden of establishing harmless

error under preserved error review. We thus reject the government’s argument

that the non-constitutional Booker error in Morgan’s sentence was harmless

because the record would leave us speculating as to what sentence the district

court would impose in its discretion. Rather, the uncertainty as to what sentence

the district court would impose post-Booker precludes a conclusion that the error

is harmless.




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      The government’s second argument, that Booker statutory error is harmless

because of the district court’s refusal to depart downward further, is similarly

inapposite. We have held that a district court’s decision not to depart downward

under U.S.S.G. § 5K1.1 does not demonstrate that a constitutional Booker error is

harmless, because the mandatory guidelines did not grant the district court

unfettered discretion as to departures, but rather, narrowly constrained the

considerations relevant to departures and the extent to which such departures were

permissible. United States v. Davis, 04-14585, 2005 U.S. App. LEXIS 7701 at *

(11th Cir. May 4, 2005). The same considerations apply to statutory Booker error.

Here, the district court’s decision to grant a departure under U.S.S.G. § 4A1.3 did

not involve the universe of sentencing factors relevant under 18 U.S.C. § 3553(a),

nor does § 4A1.3 grant the district court the same degree of discretion that it now

possesses under the post-Booker advisory guidelines. As in Davis, we conclude

that the district court’s decision to grant a limited downward departure pursuant to

U.S.S.G. § 4A1.3(b)(1) does not demonstrate what sentence the district court

would have imposed had it understood the guidelines to be advisory, nor can it

serve to satisfy the government’s burden to demonstrate that the error was

harmless.




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      Because we find Booker statutory error in Morgan’s sentence, and hold that

the government has failed to demonstrate that such error was harmless, we vacate

Morgan’s sentence and remand the case to the district court for resentencing

consistent with Booker.

      VACATED AND REMANDED.




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