                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           September 7, 2005
                              No. 04-16548
                                                          THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                    D. C. Docket No. 04-60168-CR-PCH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

GEORGE DANIEL,

                                                          Defendant-Appellant.


                        ________________________

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

                            (September 7, 2005)

Before ANDERSON, BIRCH and KRAVITCH, Circuit Judges.

PER CURIAM:

     Defendant-Appellant George Daniel appeals his sentence of 96 months
imprisonment, imposed following his guilty plea for illegal re-entry, in violation of

8 U.S.C. § 1326. Although we conclude that there was no constitutional error in

Daniel’s sentence, we vacate and remand because Daniel was sentenced under a

mandatory guidelines scheme, and the government cannot show that this error was

harmless.

       I. Background

       Daniel was indicted for illegal re-entry after deportation, in violation of 8

U.S.C. § 1326(a) and (b)(2). The indictment did not list any prior convictions, but

cited § 1326(b)(2), which provides for a maximum penalty of twenty years

imprisonment if the defendant re-entered following deportation after a conviction

for an aggravated felony.1 Daniel agreed to a bench trial and stipulated to the

following facts: Daniel was deported in September 1995 and was advised of the

consequences of returning without permission. In 2004, Daniel was found in

Miami, having re-entered the United States without permission. Daniel admitted

that he had prior convictions for possession of a firearm, battery on a law

enforcement officer, and resisting with violence, although he denied culpability

because he asserted that he had been set up for these offenses. Daniel also


        1
           Aggravated felonies include: drug trafficking offenses, firearms offenses, and crimes of
violence. 8 U.S.C. § 1101(a)(43)(B), (C), (F). A crime of violence is any offense that “has as an
element the use . . . of force against the person of another, or any other offense that is a felony and
that, by its nature, involves a substantial risk that physical force . . . may be used.” 18 U.S.C. § 16.

                                                   2
proffered that he had been forced to leave Haiti because he was threatened with

death, and that he had not intended to come to the United States but thought that he

was going to the Bahamas. Daniel admitted that he did not inform authorities

when he re-entered the country because he feared he would be deported and then

killed once he returned to Haiti.

       The district court found that the government had satisfied the elements under

§ 1326 beyond a reasonable doubt and that Daniel committed perjury in his

testimony. The court further found that Daniel’s testimony, even if credible, did

not establish a justification defense. Accordingly, the district court adjudicated

Daniel guilty of illegal re-reentry.

       The probation officer prepared a presentence investigation report (“PSI”),

assigning a base offense level of 8 under U.S.S.G. § 2L1.2, with a 16-level increase

under § 2L1.2(b)(1)(A)(i)2 because Daniel had been deported after a conviction for

a drug trafficking offense. With no other enhancements or reductions, the adjusted

offense level was 24. The probation officer then detailed Daniel’s extensive


       2
          Under U.S.S.G. § 2L1.2(b), a defendant faces a 16-level increase if the prior conviction
was “(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence
imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child
pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense;
or (vii) an alien smuggling offense.” U.S.S.G. § 2L1.2(b)(1)(A). Here, Daniel admitted to
convictions for firearm possession and battery of a police officer, both of which qualify under
§ 2L1.2(b)(1)(A)(i).



                                                 3
criminal history, which included a 1989 conviction for cocaine possession and

1994 convictions for carrying a concealed weapon, robbery, battery on a police

officer, and resisting an officer with violence. With a criminal history category V,

Daniel’s guidelines range was 92 to 115 months imprisonment.

      Daniel filed no objections to the PSI, and at sentencing challenged only

whether the court could apply an enhancement for obstruction of justice in light of

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Although the court concluded that Daniel had committed perjury, it did not apply

an enhancement for obstruction of justice because Daniel faced a lengthy sentence

given his criminal history. Daniel did not object to the increase for his prior

convictions, and he requested a sentence at the low end of the guidelines range.

The district court adopted the PSI and sentenced Daniel to 96 months

imprisonment, 3 years supervised release, and imposed a $5,000 fine. Daniel did

not object to the sentence, other than to preserve his argument that his testimony

had been truthful. Daniel now appeals, challenging his sentence as erroneous

under United States v. Booker, 543 U.S. –, 125 S.Ct. 738, 161 L.Ed.2d 621 (2005).

      II. The Appeal

      Although Daniel raised a Blakely (now Booker) challenge in the district

court, he did so only with respect to the application of an enhancement for



                                           4
obstruction of justice. For the first time on appeal, he asserts that the enhancement

for his prior conviction was a constitutional error. Therefore, as this issue was not

raised before the district court, we review for plain error. “Plain error occurs where

(1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s

substantial rights in that it was prejudicial and not harmless; and (4) that seriously

affects the fairness, integrity, or public reputation of the judicial proceedings.”

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

      In Booker,3 the Supreme Court held that Blakely applied to the federal

sentencing guidelines and that the Sixth Amendment required that any fact that

increased a defendant’s sentence beyond the maximum sentence authorized by the

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

proven to a jury beyond a reasonable doubt. 125 S.Ct. 738. This court has

explained that a Booker error also results from the district court’s use of a

mandatory guidelines scheme, even in the absence of any constitutional error.

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

      Here, there was no constitutional error. An enhancement based on a prior

conviction under § 2L1.2(b)(1)(A)(i), even if not admitted by the defendant, does




      3
          This court now reviews Blakely arguments under Booker.

                                              5
not represent a constitutional Booker error.4 United States v. Orduno-Mireles, 405

F.3d 960, 962-63 (11th Cir. 2005); United States v. Camacho-Ibarquen, 404 F.3d

1283, 1290 (11th Cir. 2005). The Supreme Court’s decision in United States v.

Shepard, 544 U.S. –, 125 S.Ct. 1254 (2005), does not alter this conclusion. United

States v. Gallegos-Aguero, 409 F.3d 1274, 1277 (11th Cir. 2005); Camacho-

Ibarquen, 404 F.3d at 1290 n.3.

       Although there is no constitutional error in Daniel’s sentence, this court has

recognized that a Booker error may be statutory – that is, there was error in the

court’s application of the sentencing guidelines as mandatory. Gallegos-Aguero,

409 F.3d at 1277; Shelton, 400 F.3d at 1330-31 (defining two types of Booker

error). Here, Daniel raised Blakely before the district court, and, therefore, he has

preserved his challenge to the mandatory application of the guidelines.5 See

United States v. Mathenia, 409 F.3d 1289, 1290-91 (11th Cir. 2005).

       4
          Daniel does not raise this issue, but we note the discrepancy in the underlying offense
forming the basis of the enhancement. The probation officer and the district court imposed a 16-
level enhancement, which applies when an alien has been removed after a conviction for a drug
trafficking offense, a firearm offense, or a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(i)-(iii).
Specifically, the court found that Daniel had committed a drug trafficking offense. At trial,
however, Daniel admitted that he had prior convictions for possession of a firearm, battery on a law
enforcement officer, and resisting with violence, but he did not admit to a drug trafficking offense.
Nevertheless, his possession of a firearm and his battery of a police officer are aggravated felonies
under 8 U.S.C. § 1101(a)(43) and qualify for a 16-level enhancement under § 2L1.2(b)(1)(A)(i) and
(iii). Therefore, there was no error in the application of the enhancement.
       5
         Although Daniel filed his appellate brief after this court clarified that there were two types
of Booker error, we conclude that raising Blakely before the district court was sufficient to preserve
a claim of statutory error. See United States v. Dowling, 403 F.3d 1242 (11th Cir. 2005).

                                                  6
         When a defendant has preserved his Booker claim, we review the sentence

to determine if the error was harmless. Mathenia, 409 F.3d at 1291. We have

recognized two types of harmless error - one applicable to constitutional errors, the

other applicable to statutory errors. Id. at 1292. This case involves statutory error,

and, therefore, the error is harmless if, “viewing the proceedings in their entirety, a

court determines that the error did not affect the [sentence], or had but a very slight

effect.” Id. (citations and quotations omitted). The burden is on the government to

show that the error was harmless. United States v. Paz, 405 F.3d 946 (11th Cir.

2005).

         Here, the government cannot meet its burden. The record is devoid of any

evidence to show whether the error had any effect on Daniel’s sentence. In the

absence of any indication that the sentence would have been different, the

government cannot show that the error was harmless. Mathenia, 409 F.3d at 1292.

Accordingly, we VACATE and REMAND for resentencing under an advisory

guidelines scheme.




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