                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT            FILED
                            ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                 No. 04-15926                  MAY 23, 2006
                             Non-Argument Calendar           THOMAS K. KAHN
                                                                 CLERK
                           ________________________

                     D. C. Docket No. 03-60032-CR-KAM

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                     versus

RAFI RAFAEL,
a.k.a. Joe,
                                                        Defendant,

ODELIA SHMUELOV,
a.k.a. Odelia Shmuilov,
a.k.a. Odelia Vale,

                                                       Defendant-Appellant.


                           ________________________

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

                                 (May 23, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:

       Odelia Shmuelov 1 appeals her 84-month sentence imposed after a jury

convicted her of: (1) conspiracy to commit wire fraud, mail fraud, and extortion;

(2) wire fraud; and (3) extortion in violation of 18 U.S.C. §§ 371, 1343, 1951. She

also appeals the district court’s restitution order imposed under the Mandatory

Victims Restitution Act (MVRA), 18 U.S.C. § 3663A. She argues that the

restitution order is invalid because the district court ordered restitution more than

90 days after she was sentenced in violation of procedures set forth in 18 U.S.C. §

3664. She further argues that the district court erred in light of United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 261 (2005) by enhancing her

sentence and ordering restitution based on judge-found facts under a mandatory

guidelines system. She asks us to extend to restitution orders the holding of

Booker.

       We review de novo statutory interpretations involving the legality of a

restitution order. United States v. Maung, 267 F.3d 1113, 1120 (11th Cir. 2001).

The district court must make a restitution determination within 90 days of



       1
         Rafi Rafael, Shmuelov’s codefendant, was originally a party to this appeal. However, he
filed a motion to dismiss his appeal with prejudice, which we granted. The appeal continued
unabated as to Shmuelov.

                                               2
sentencing, not of the entry of judgment. See Maung, 267 F.3d at 1120-21.

“‘[S]entencing’ means the oral announcement of the sentence.” Fed. R. Crim. P.

35(c). Where the district court fails to make a restitution determination within the

90-day limitations period, “the judgment of conviction becomes final and contains

no enforceable restitution provision.” United States v. Kapelushnik, 306 F.3d

1090, 1093-94 (11th Cir. 2002).

      We review de novo Shmuelov’s timely raised claims of constitutional

Booker error and reverse only for harmful error. United States v. Paz, 405 F.3d

946, 948 (11th Cir. 2005) (per curiam) (citation omitted). Constitutional Booker

error “is the use of extra-verdict enhancements to reach a guidelines result that is

binding on the sentencing judge; the error is the mandatory nature of the guidelines

once the guidelines range has been determined.” United States v. Shelton, 400

F.3d 1325, 1331 (11th Cir. 2005). “[I]n constitutional error cases, the Government

must prove beyond a reasonable doubt the mandatory, as opposed to the advisory,

application of the guidelines did not contribute to the defendant’s sentence.”

United States v. Cain, 433 F.3d 1345, 1348 (11th Cir. 2005) (quotations omitted).

      Here, the government correctly concedes that the restitution order was not

made within 90 days of Shmuelov’s sentencing. The restitution order is thus

invalid. Maung, 267 F.3d at 1122. Accordingly, we reverse the district court’s



                                           3
restitution order. Because the restitution order is invalid, we do not reach the issue

as to whether that order violated Booker.

      The government also correctly concedes that it cannot show, beyond a

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

ultimate sentence. Therefore, we vacate the Shmuelov’s sentence and remand this

case to the district court for re-sentencing consistent with Booker. We note that the

district court correctly calculated the Guideline’s range of 78 to 97 months, which

it must consider in an advisory manner along with the other statutory concerns

listed in 18 U.S.C. § 3553(a) when it re-sentences Shmuelov. See Cain, 433 F.3d

at 1349.

      REVERSED IN PART, VACATED IN PART, AND REMANDED.




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