                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                   FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                            No. 04-14840                     August 19, 2005
                        Non-Argument Calendar             THOMAS K. KAHN
                      ________________________                CLERK


                  D. C. Docket No. 04-60123-CR-WPD

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                 versus

LOUIS GERALD INDELL,

                                                    Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________
                            (August 19, 2005)




Before ANDERSON, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Louis Gerald Indell appeals his sentence imposed after pleading guilty to

possession of a firearm and ammunition by a convicted felon, in violation of 18

U.S.C. § 922(g)(1), asserting the district court erred under United States v. Booker,

125 S. Ct. 738 (2005). We vacate and remand for resentencing.

                                  I. DISCUSSION

      Because Indell raised a constitutional objection to his sentence based on

Blakely v. Washington, 124 S. Ct. 2531 (2004), before the district court, we review

his sentence de novo, but will reverse only for harmful error. See United States v.

Paz, 405 F.3d 946, 948 (11th Cir. 2005). We have clarified there are two types of

Booker error: (1) Sixth Amendment, or constitutional, error based upon sentencing

enhancements, imposed under a mandatory Guidelines system, neither admitted by

the defendant nor submitted to a jury and proven beyond a reasonable doubt; and

(2) statutory error based upon sentencing under a mandatory Guidelines system.

United States v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir. 2005).

A.    Constitutional Error

      1. Constitutional Error

      A district court does not commit Booker constitutional error by relying on

past convictions to enhance a defendant’s sentence. Shelton, 400 F.3d at 1329.




                                          2
Because Indell’s sentence was enhanced based on past convictions, there is no

constitutional error.1

B.    Statutory Error

      Although the district court committed no constitutional error in sentencing

Indell, because the district court sentenced him under a mandatory Guidelines

scheme, there was Booker statutory error. See Shelton, 400 F.3d at 1330–31. “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, 11th Cir., 2005, __ F.3d __ (No. 04-15250, May

23, 2005) (internal quotation marks and brackets omitted). The Government has

the burden of showing the error was harmless. Id.

      1
         In his reply brief, Indell argues that United States v. Shepard, 125 S. Ct. 1254
(2005), mandates a jury must find the facts underlying his prior convictions that
trigger enhancements. We disagree. Shepard reaffirmed “a court . . . could look to
statutory elements, charging documents, and jury instructions to determine whether
an earlier conviction” qualified as a violent felony. Id. at 1257 (emphasis added).
While Shepard limited the categories of material a court could consider in making a
violent felony determination, it did not take away a judge’s power to pass on this
matter of law or even suggest it was appropriate for jury consideration. See United
States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005) (“The Supreme Court’s post-
Booker opinion in Shepard v. United States lends further support to the rule that the
sentencing court, not a jury, must determine whether the prior convictions qualify as
violent felonies.”).

                                           3
      In United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005), using the

higher harmless beyond a reasonable doubt standard used in Booker constitutional

error cases, we held the district court’s grant of the government’s U.S.S.G. § 5K1.1

motion for a downward departure based on the defendant’s substantial assistance

neither removed nor rendered harmless beyond a reasonable doubt any Booker

error. In so holding, we reasoned the § 5K1.1 motion did not give the sentencing

court “unfettered” discretion, as argued by the government, but rather gave the

court only limited discretion to consider the defendant’s assistance. Id. Noting the

sentencing court could not permissibly consider the sentencing factors announced

in 18 U.S.C. § 3553(a) when exercising its discretion, we concluded it was unclear

what the sentencing court would have done had it understood the Guidelines to be

advisory and had properly considered the § 3553(a) factors. Id.

      The Government asserts the error is harmless because Indell made two

requests for downward departures that provided the district court with discretion to

give Indell a sentence lower than the bottom of the Guidelines range, and the

district court declined to depart downward. We conclude the error was not

harmless. In reviewing the record, it is unclear what the sentencing court would

have done had it understood the Guidelines to be advisory. Although the

sentencing court commented that Indell’s criminal history reflected a need to



                                          4
protect the public and that Indell would be “better off” incarcerated in light of his

drinking problem, thus considering the need to protect the public and provide the

defendant with needed medical care, see 18 U.S.C. § 3553(a)(2)(C), (D), we cannot

say what the sentencing court would have done had it understood the Guidelines to

be advisory. The Government cannot show the sentence was not substantially

swayed by the error. See United States v. Mathenia, 11th Cir., 2005, __ F.3d __

(No. 04-15250, May 23, 2005).

                                 II. CONCLUSION

      The district court erred in treating the Guidelines as mandatory, and that

error was not harmless. Thus, we vacate and remand for resentencing in light of

Booker. We note the district court correctly calculated Indell’s Guidelines range of

30 to 37 months’ imprisonment. See United States v. Crawford, 407 F.3d 1174,

1178–79 (11th Cir. 2005) (stating after Booker, district courts must consult the

Guidelines and “[t]his consultation requirement, at a minimum, obliges the district

court to calculate correctly the sentencing range prescribed by the Guidelines”).

Thus, on remand, the district court is required to sentence Indell according to

Booker, considering the Guidelines advisory range of 30 to 37 months’




                                           5
imprisonment and “other statutory concerns as well, see [18 U.S.C.] § 3553(a)

(Supp. 2004).” Booker, 125 S. Ct. at 757.2

       VACATED AND REMANDED.




       2
           We do not mean to imply that on remand the district court must impose a lesser sentence.
Rather, we merely hold the Government did not meet its burden of showing the Booker statutory
error is harmless. We also will not attempt to decide now whether a particular sentence below the
Guidelines range might be reasonable in this case.

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