                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                  FILED
                                                     U.S. COURT OF APPEALS
                    _____________________________ ELEVENTH CIRCUIT
                                                          October 20, 2005
                             No. 04-14218               THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                    _____________________________

                  D.C. Docket No. 04-80044-CR-DMM

UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

                                 versus

HAROLD TODD, JR.,

                                              Defendant-Appellant.

                     ___________________________

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

                           (October 20, 2005)

Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit Judges.

PER CURIAM:
      Defendant-Appellant Harold Todd appeals his conviction and 262-month

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

§ § 922(g)(1) and 924(e). We affirm Defendant’s conviction, vacate his sentence,

and remand for resentencing.

      Defendant contends that his Confrontation Clause rights were violated by

the introduction at trial of a 911 call. The West Palm Beach Police Department

received a 911 call on 5 November 2003 that disconnected; a civilian 911

dispatch operator immediately returned the call. The dispatcher spoke with an

unidentified female who said that a man was holding his girlfriend at gunpoint in a

nearby apartment. The unidentified female also said that the parties in the nearby

apartment had been fighting, and she described the male as a black male named

“Harold” and described the gun as a black handgun.

      Police officers responded to the address of the 911 caller and heard a

woman screaming loudly for help. A gathering crowd directed the officers to

apartment 4. The officers entered apartment 4 and saw Defendant striking a

woman. In plain view, on the bed, was a .38 caliber revolver within Defendant’s

reach. At first, Defendant ignored the officers command to stop; one officer struck

Defendant. Although Defendant dropped down on one knee, the officers observed

that he lunged toward the firearm. At the police station, Defendant told the

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officers that he used the gun only to scare his girlfriend and acknowledged that he

was not allowed to have a firearm as a convicted felon. Defendant also said the

gun was given to him by his father who recently died.

       The government offered the 911 tape into evidence relying on the

excited-utterance and present-sense-impression exceptions to the hearsay rule.

Defendant objected to the applicability of the exceptions and argued further that,

hearsay exceptions notwithstanding, the 911 tape was inadmissible “testimonial

hearsay” under Crawford v. Washington, 124 S.Ct. 1354 (2004). The district

court admitted the tape.

       On appeal, Defendant pursues only his Confrontation Clause challenge to

the admission of the 911 tape. In Crawford, the Supreme Court determined that

the Sixth Amendment’s Confrontation Clause prohibits the government from

introducing “testimonial” hearsay, irrespective of indicia of reliability unless the

witness who made the out-of-court statement was unavailable and previously had

been subjected to cross-examination1. Id. at 1374. Crawford leaves expressly to

another day a comprehensive definition of “testimonial,” but offers this guidance:


   1
    In so ruling, the Supreme Court concluded that the previously applicable test set out in Ohio v.
Roberts, 100 S.Ct. 2531 (1980), was fundamentally flawed. Crawford, 124 S.Ct. at 1371. Under
Roberts, the Confrontation Clause was deemed satisfied if the out-of-court statement had “adequate
‘indicia of reliability,’” a standard that was met if the statement fell within a “firmly rooted hearsay
exception” or had “particularized guarantees of trustworthiness.” Roberts, 100 S.Ct. at 2539.

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             Whatever else the term covers, it applies at a minimum
             to prior testimony at a preliminary hearing, before a
             grand jury, or at a former trial; and to police
             interrogations. These are the modern practices with
             closest kinship to the abuses at which the Confrontation
             Clause was directed.

Id. Testimonial statements under Crawford may possibly also include, among

others, affidavits, custodial examinations, confessions, depositions, prior

testimony without the benefit of cross-examination, and “statements that

declarants would reasonably expect to be used prosecutorially.” Id. at 1364.

      Federal and state court decisions post-Crawford have struggled with the

meaning of “testimonial” in the context of 911 calls; most courts have concluded

that the 911 statements under review were not testimonial. See, e.g., United States

v. Brun, 416 F.3d 703, 707 (8th Cir. 2005) (child’s excited utterances during 911

call nontestimonial); Pitts v. State, 612 S.E.2d 1, 5 (Ga. App. 2005) (statements in

911 calls made while incident actually occurring not testimonial); Leavitt v.

Arave, 383 F.3d 809, 830 n.22 (9th Cir. 2004), cert. denied, 125 S.Ct. 2540 (2005)

(murder victim’s identification of defendant in 911 call made during a home

intrusion the night before the murder not testimonial); State v. Wright, 686

N.W.2d 295, 302 (Minn.Ct.App. 2004) (statements in 911 call made moments

after a criminal offense not testimonial); but see State v. Parks, 116 P.3d 631, 640



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(Ariz.App.Div. 2005) (rejecting categorical classification of all excited utterances

as non-testimonial for Crawford purposes); Peoples v. Cortes, 781 N.Y.S.2d 401,

415 (Sup.Ct. 2004) (statements of witness to on-going shooting made to 911

dispatcher testimonial under Crawford). We need not weigh in on this issue: even

if we were to assume that Defendant’s’s Confrontation Clause rights were

violated, the error was harmless beyond a reasonable doubt.

      Two police officers responding to the 911 call heard screaming from

apartment 4. Upon entry, Defendant was observed by them striking a woman.

The officers saw a revolver in plain view within Defendant’s reach. Although

neither officer saw Defendant actually hold the gun, testimony was presented that

Defendant appeared to reach for the gun during his struggle with the officers. One

officer testified also that Defendant -- after being advised of his Miranda rights --

admitted to possession of the gun to scare his girlfriend, albeit he claimed to have

no intent to fire it. Defendant also told the officers that the gun was given to him

by his father and that he knew, as a convicted felon, he was unallowed to possess a

firearm. In the light of the evidence linking Defendant to the gun, the introduction

of the 911 tape was harmless beyond a reasonable doubt. See Delaware v. Van

Arsdall, 106 S.Ct. 1431, 1438 (1986) (no reversal of conviction for Confrontation

Clause violation that was harmless beyond a reasonable doubt).

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       Defendant also challenges his sentence under United States v. Booker, 125

S.Ct. 738 (2005)2; he argues that the district court violated his Fifth and Sixth

Amendment rights when it enhanced his sentence under the armed career criminal

provisions of 18 U.S.C. § 924(e) where (i) the indictment did not include his prior

felony convictions; and (ii) the sentencing court made the additional factual

determinations that his prior felony convictions qualified as “serious drug

offenses” within the meaning of 18 U.S.C. 924(e)(2)(A).

       In Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998), the Supreme

Court determined that the fact of prior convictions need not be alleged in the

indictment nor proved beyond a reasonable doubt to form the basis for a sentence

enhancement. Booker, 125 S.Ct. at 756, confirmed Almendarez-Torres when it

too spoke to “a fact (other than a prior conviction).” And we have stated expressly

post-Booker that Almendarez-Torres remains good law. United States v. Orduno-

Mireles, 405 F.3d 960, 962-63 (11th Cir.), petition for cert. filed (U.S. July 1,

2005) (No. 04-6961). No constitutional Booker error has been shown. See United

States v. Marseille, 377 F.3d 1249, 1257 (11th Cir. 2004) (rejecting argument that



  2
    Defendant’s brief, filed before the Booker decision was announced, casts his claim in terms of
Blakely v. Washington, 124 S.Ct. 2531 (2005). Because Booker applies to all cases pending on
direct appeal, 125 S.Ct. at 769,we review Defendant’s claim under Booker. Because Defendant
raised his constitutional challenge in the district court, preserved error review applies.

                                                6
district court erred under Blakely when it enhanced sentence under 18 U.S.C.

924(e) and U.S.S.G. § 4B1.4 based on uncharged prior convictions); Shepard v.

United States, 125 S.Ct. 1254, 1257 (2005) (whether predicate convictions are

“violent felonies” for purposes of 18 U.S.C. 924(e)(2)(b) remains matter of law to

be determined by court by reference to statutory elements, charging documents

and jury instructions).

      Defendant’s preserved constitutional challenge under Blakely also serves to

preserve a statutory claim under Booker. See United States v. Dowling, 403 F.3d

1242, 1244-46 (11th Cir. 2005) (noting that a “citation to Apprendi or to other

cases in that line of cases” allows preserved Booker-error review). Statutory

Booker error exists when the district court misapplies the sentencing guidelines by

considering them as mandatory as opposed to advisory. United States v. Shelton,

400 F.3d 1325, 1331 (11th Cir. 2005). The district court determined the sentencing

range under the guidelines to be 262 to 327 months; it sentenced Defendant under

the mandatory guidelines to 262 months. Statutory Booker error has been shown.

      We must determine whether the statutory error was harmless. As we have

stated,

             [t]here are two harmless error standards. One of them
             applies to Booker constitutional errors, the other to
             Booker statutory errors.... Booker statutory errors ... are

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            subject to [a] less demanding test.... A non-constitutional
            error is harmless if, viewing the proceedings in their
            entirety, a court determines that the error did not affect
            the sentence, or had but very slight effect. If one can say
            with fair assurance that the sentence was not
            substantially swayed by the error, the sentence is due to
            be affirmed even though there was error.

United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005) (citations,

quotations, and alterations omitted). And, in preserved error review, the

government bears the burden of proving harmless error. Id. at 1292. After review

of the sentencing proceedings, we cannot say with fair assurance that Defendant’s

sentence was not swayed substantially by the mandatory application of the

guidelines. “We simply do not know what the sentencing court would have done

had it understood the guidelines to be advisory rather than mandatory, and had

properly considered the factors in 18 U.S.C. § 3553(a).” United States v. Davis,

407 F.3d 1269, 1271 (11th Cir. 2005).

      We AFFIRM Defendant’s conviction; we VACATE Defendant’s sentence

and REMAND for resentencing consistent with the remedial holding of Booker.




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