                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                               August 18, 2005
                                                               THOMAS K. KAHN
                                No. 04-15932                        CLERK
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 03-00649-CR-RWS-1-1

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

BARON CARL SMITH,
a.k.a. Michael P. Babinchak,

                                                         Defendant-Appellant.

                         __________________________

               Appeal from the United States District Court for the
                          Northern District of Georgia
                         _________________________
                               (August 18, 2005)

Before BIRCH, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

      Baron Carl Smith appeals his sentence for illegally re-entering the United

States after previously being removed, in violation of 8 U.S.C. § 1326(a)(2),
(b)(2). Smith pled guilty to the one-count indictment for illegal re-entry. The

government presented the factual basis for the indictment at the plea hearing,

representing that Smith “had felony convictions for carrying a firearm without a

license and receiving stolen property” before his deportation in 2003. R2 at 22.

Smith admitted that he was convicted of those crimes, but emphasized that he was

pleading guilty only to the indictment and asserted that the prior convictions were

neither presented to the grand jury nor alleged in the indictment. Id. at 23-24. The

probation officer calculated Smith’s guidelines range as 18-24 months based on a

total offense level of 13 and a criminal history category of III.

      At sentencing, Smith argued that a proposed 8-level enhancement based on

his prior convictions was not included in the indictment and thus violated Blakely

v. Washington,     U.S. , 124 S. Ct. 2531 (2004). R3 at 2. Based on this court’s

precedent, the district court overruled the objection. Id. at 2. The district court

subsequently sentenced Smith to a term of imprisonment of 21 months and 3 years

supervised release.

      On appeal, Smith argues that the district court violated his Sixth

Amendment right pursuant to United States v. Booker, 543 U.S. __, 125 S. Ct. 738

(2005), by enhancing his sentence with prior convictions not charged in the




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indictment or proven to a jury. He also contends that the district court should have

considered the guidelines in an advisory rather than a binding manner.

      When a defendant raises a constitutional objection to sentencing

enhancements in the district court, we review the sentence de novo. United States

v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). To preserve a Booker error, the timely

constitutional objection must have referred to the Sixth Amendment, Apprendi or

other related cases, or the right to have the jury decide the disputed fact, or have

raised a challenge to the judge’s role as fact-finder with regard to sentencing.

See United States v. Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005). In Booker,

the Supreme Court held that a defendant’s Sixth Amendment right to trial by jury

is violated by the imposition of a sentencing enhancement under the mandatory y

federal sentencing guidelines scheme based upon facts neither admitted by the

defendant nor found by the jury. Booker, 543 U.S. at __, , 125 S. Ct. at 749-56,

764. Based on Booker, we have stated that there can two Booker errors: (1) a

Sixth Amendment error by the imposition of a sentencing enhancement based on

judicial findings that go beyond the facts admitted by the defendant or found by

the jury, and (2) a statutory error by being sentenced under a mandatory guidelines

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




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      We will reverse a sentence only if the district court’s sentencing error was

harmful. Paz, 405 F.3d at 948. A constitutional error is harmless when it is clear

beyond a reasonable doubt that the error did not contribute to the sentence

imposed. Id. The government bears the burden of showing “that the error did not

affect the defendant’s substantial rights.” Id. There is, however, no Sixth

Amendment violation when a defendant’s sentence is enhanced based on prior

convictions. United States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir.

2005).

      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, 1292 (11th Cir. 2005) (quotation marks

omitted and citation omitted). The government’s burden in proving harmless error

for a non-constitutional error is difficult. Id. at 1292.

      The district court did not err by enhancing Smith’s sentence based on his

prior convictions. The district court, however, committed error by sentencing

Smith under a mandatory guidelines system. Because Smith preserved the error

below, we review for harmless error. The error was harmful because the

government has not shown that the error did not affect Smith’s sentence or

                                           4
substantial rights, and the record does not indicate that the district court would

have sentenced in the same manner if the guidelines were not mandatory.

Therefore, the district court committed harmful error. Accordingly, we vacate and

remanding for resentencing.

      VACATED AND REMANDED.




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