                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 04-3398
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.

JAMES T. SCHLIFER,
                                       Defendant-Appellant.

                       ____________
           Appeal from the United States District Court
              for the Western District of Wisconsin.
       No.04-CR-59-C-01—Barbara B. Crabb, Chief Judge.
                       ____________
      ARGUED MARCH 1, 2005—DECIDED APRIL 7, 2005
                    ____________




  Before KANNE, EVANS and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. James Schlifer appeals his
sentence of 120 months on the ground that the district court
violated the Sixth Amendment by sentencing him as a
career offender without presenting the facts underlying his
prior convictions to a jury. He also argues that in light of
the Supreme Court’s decision in United States v. Booker,
125 S. Ct. 738 (2005), the district court erred in applying
the guidelines under the prior mandatory sentencing scheme.
Although Schlifer’s Sixth Amendment argument lacks merit,
we vacate his sentence and remand for resentencing be-
2                                                No. 04-3398

cause the district court erred under Booker by sentencing
Schlifer under a mandatory guidelines system, and the
government has not demonstrated that the error was harm-
less.


                    I. BACKGROUND
  In June 2004 Schlifer pleaded guilty to one count of
conspiracy to manufacture methamphetamine, in violation
of 21 U.S.C. §§ 846 and 841(a)(1). Under the November
2003 sentencing guidelines, Schlifer’s crime ordinarily
would have carried a base offense level of 30 based on evi-
dence that the quantity of methamphetamine was at least
360 grams. U.S.S.G. § 2D1.1(c)(5). However, the probation
officer who prepared the presentence investigation report
(PSR) recommended that the court sentence Schlifer as a
career offender because among his prior crimes were two
unrelated convictions for aggravated assault. See U.S.S.G.
§ 4B1.1. Under the career offender guideline, Schlifer’s base
offense level increased to 32 and his criminal history cate-
gory was VI regardless. U.S.S.G. § 4B1.1. The court then
deducted three levels for acceptance of responsibility. See
U.S.S.G. § 3E1.1. This resulted in a total offense level of 29,
which, combined with Schlifer’s criminal history category of
VI, yielded a sentencing range of 151 to 188 months.
  In response to the PSR and again at his sentencing hear-
ing, Schlifer objected to being sentenced as a career offender.
He argued that in order to classify him as a career offender
the district court was required to find facts beyond the mere
existence of two prior convictions. Specifically, he argued
that the district court had to determine whether his prior
convictions were for crimes of violence and whether the two
crimes were unrelated. See U.S.S.G. §§ 4B1.2(c), 4A1.2(a) &
cmt. n.3. These determinations, Schlifer argued, required the
district court to go beyond the “fact of a prior conviction”
and thus exceeded the judicial factfinding exception for
No. 04-3398                                                   3

recidivism recognized in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), and preserved in Apprendi v.
New Jersey, 530 U.S. 466 (2000). Accordingly, Schlifer con-
tended that under Blakely v. Washington, 124 S. Ct. 2531
(2004), and United States v. Booker, 375 F.3d 508 (7th Cir.
2004), these facts must be admitted or proven beyond a
reasonable doubt before they could be used to increase his
guideline range. The district court rejected Schlifer’s argu-
ment, concluding that Blakely and this court’s opinion in
Booker do not apply to prior convictions.
  The district court denied Schlifer’s motion to depart under
U.S.S.G. § 5K2.0, rejecting his argument that his offense
primarily involved manufacturing methamphetamine for
personal use and thus fell outside of the “heartland” of drug
manufacturing and distribution cases contemplated by the
guidelines. The court, however, granted the government’s
motion for a downward departure based on Schlifer’s
substantial assistance. See U.S.S.G. § 5K1.1. The court cal-
culated a new effective range of 120 to 150 months by de-
parting the equivalent of three levels, and sentenced Schlifer
to 120 months’ imprisonment.


                       II. ANALYSIS
  Schlifer argues in his opening brief that the district court
impermissibly sentenced him as a career offender without
submitting the issue to a jury. After that brief was filed,
and after his case had already been set for oral argument,
the Supreme Court decided Booker. We granted Schlifer’s
motion to file a supplemental brief in light of Booker. Schlifer
now argues in addition that his sentence is erroneous
because the district court imposed it under the mandatory
guidelines system that existed prior to Booker. He thus con-
tends that his sentence should be vacated and his case
remanded for resentencing in light of the Court’s decision
that the guidelines are advisory.
4                                                 No. 04-3398

   A defendant is a career offender under U.S.S.G. § 4B1.1
if he commits a felony drug offense after the age of 18 and
has at least two prior felony convictions for crimes of vio-
lence or drug trafficking offenses. The prior offenses must
be unrelated. Schlifer argues in his opening brief that these
determinations require a sentencing court to find facts
outside the judgment of conviction and thus entail imper-
missible factfinding by the court.
  Prior to the Supreme Court’s decision in Booker, Schlifer’s
appeal would have been frivolous. Neither the Supreme
Court’s decision in Blakely nor this court’s opinion in Booker
disturbed the principle that the “fact of a prior conviction”
falls outside the Apprendi rule that facts increasing a sen-
tence beyond the otherwise applicable statutory maximum
must be proved to a jury beyond a reasonable doubt. See
United States v. Pittman, 388 F.3d 1104, 1109 (7th Cir. 2004).
Thus in Pittman this court held that imposing a career
offender sentence under § 4B1.1 without resort to a jury or
proof beyond a reasonable doubt of the prior convictions did
not violate Blakely as interpreted by this court in Booker. Id.
Pittman has not been affected by the Supreme Court’s
decision in Booker because the Court again preserved the
Almendarez-Torres exception for prior convictions. See
Booker, 125 S. Ct. at 758. And, although the Supreme Court
recently called its future into question, the Almendarez-
Torres exception for prior convictions still stands. Shepard
v. United States, 2005 WL 516494 (U.S. March 7, 2005).
  Schlifer attempts to distinguish his case by arguing that
the district court’s conclusion that he is a career offender
entailed finding facts outside the “fact of a prior conviction,”
namely, whether his prior convictions are for crimes of vio-
lence and whether they are “related.” But we have already
rejected a similar argument in United States v. Morris, 292
F.3d 1010 (7th Cir. 2002). In Morris, a defendant who was
sentenced under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e), argued that his sentence was unconstitutional
No. 04-3398                                                  5

under Apprendi because the government did not prove be-
yond a reasonable doubt that his prior convictions had been
committed on separate occasions as required by the statute.
We rejected the argument, noting that there was no prece-
dent for “parsing out the recidivism inquiry.” Id. at 1012.
Likewise, Schlifer cites no authority in support of his argu-
ment that, although “the fact of a prior conviction” may be
found by a judge by the preponderance of the evidence, the
factors that bear on that determination must be proved
beyond a reasonable doubt. In this case, the district court did
not engage in impermissible factfinding with respect to its de-
termination that Schlifer was a career offender, and Schlifer’s
sentence accordingly does not violate the Sixth Amendment.
  In his supplemental brief, however, Schlifer raises the
nonfrivolous argument that the Supreme Court’s remedial
opinion in Booker invalidates his sentence even in the ab-
sence of a Sixth Amendment violation. In Justice Stevens’s
opinion in Booker, the Court extended its holding in Blakely
to the federal sentencing guidelines and held that the Sixth
Amendment right to trial by jury is violated where a
defendant’s guidelines range is increased based on facts
(other than a prior conviction) found by the judge without
a jury or using a preponderance standard. Booker, 125 S.
Ct. at 756. Second, the Court, in an opinion authored by
Justice Breyer, severed from the authorizing statute the
provision that called for the mandatory application of the
Guidelines and the provision that established the appellate
standard of review. Id. at 765. The Court thus crafted a
system under which the district courts are obligated to
consider the guidelines but are not bound by them. Id. at
767.
  The remedial portion of the Court’s decision, which in-
validates the mandatory application of the guidelines and
instead requires the courts to consult them in an advisory
fashion, must be applied to all cases pending on direct review,
even in the absence of a Sixth Amendment violation. See id.
6                                                  No. 04-3398

at 765. Thus in every pending appeal where the district court
sentenced a defendant under the now-defunct mandatory
guidelines scheme, error will have been committed. See id.
at 768,1 769 (holding that parties in respondent Fanfan’s
case “may seek resentencing under the system set forth in
[Booker]” though “Fanfan’s sentence d[id] not violate the
Sixth Amendment”); United States v. Paladino, Nos. 03-2296
et al., 2005 WL 435430, at *7 (7th Cir. Feb. 25, 2005) (find-
ing Booker error where a portion of defendant Velleff’s
sentence “was based on mandatory provisions of the sen-
tencing guidelines”); see also, United States v. Crosby, 397 F.3d
103, 114-15 (2d Cir. 2005); United States v. Hughes, 2005
WL 628224, at *4 (4th Cir. Mar. 16, 2005); United States v.
Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005).
  The existence of error, however, does not mean that every
appeal must lead to resentencing. In Booker, the Court
instructed that the “ordinary prudential doctrines” of plain
error and harmless error should be applied in determining
whether resentencing is necessary. 125 S. Ct. at 769. Thus
we must first determine whether Schlifer preserved his



1
      The Government would render the Guidelines ad-
      visory in ‘any case in which the Constitution prohib-
      its’ judicial factfinding. But it apparently would
      leave them as binding in all other cases. We agree
      with the first part of the Government’s suggestion.
      However, we do not see how it is possible to leave
      the Guidelines as binding in other cases. . . . [W]e
      believe that Congress would not have authorized a
      mandatory system in some cases and a nonman-
      datory system in others, given the administrative
      complexities that such a system would create. Such
      a two-system proposal seems unlikely to further
      Congress’ basic objective of promoting uniformity in
      sentencing.
Id. at 768.
No. 04-3398                                                   7

Booker claim and what standard of review applies to the
claim. See United States v. McDaniel, 398 F.3d 540 (6th
2005). The doctrine of plain error applies when a defendant
forfeits a ground in the district court but raises it on appeal.
United States v. Pawlinski, 374 F.3d 536, 540 (7th Cir. 2004).
Otherwise, the appellant is entitled to plenary review of a
sentencing error.
  This is not a plain error case, and our recent decision in
Paladino is inapposite here. Schlifer was sentenced prior to
the Supreme Court’s opinion in Booker, but he objected to
his sentence in the district court on Blakely grounds.
Schlifer also anticipated the possibility that the guidelines
were severable. His objection was specific enough to pre-
serve the argument he makes now about the mandatory
character of his sentence because it was sufficient to alert
“the court and opposing party to the specific grounds for the
objection.” United States v. Linwood, 142 F.3d 418, 422 (7th
Cir. 1998). This is also the position recently taken by the
Tenth Circuit, which held that an appellant who raised a
Blakely argument in the district court also preserved for
appeal a Booker error. See Labastida-Segura, 396 F.3d at
1143. In contrast, the courts of appeal that have applied
plain error analysis to a Booker claim have done so because
no Sixth Amendment challenge was raised in the district
court. E.g., Paladino, 2005 WL 435430, at *7; Hughes, 2005
WL 628224, at *5; United States v. Rodriguez, 398 F.3d
1291, 1298 (11th Cir. 2005).
  Because, in effect, the district court’s error amounts to a
misapplication of the guidelines, Schlifer’s sentence must be
vacated unless the error was harmless. See United States v.
Hollis, 230 F.3d 955, 958 (7th Cir. 2000); United States v.
Jackson, 32 F.3d 1101, 1109-10 (7th Cir. 1994). When an
error relates to the validity of a defendant’s sentence, it is
harmless only if it did not affect the district court’s choice
of sentence. United States v. Smith, 332 F.3d 455, 460 (7th
Cir. 2003); Jackson, 32 F.3d at 1109.
8                                                No. 04-3398

   The government argues in its supplemental brief that any
error in Schlifer’s sentence was harmless because it did not
affect the district court’s choice of sentence. First, the
government argues that the district court’s decision to
depart downward the equivalent of just three offense levels
based on Schlifer’s substantial assistance signals the court’s
unwillingness to exercise the discretion already available to
it by further lowering Schlifer’s sentence. This argument
has some facial appeal, but it ignores the fact that a sen-
tencing judge, prior to Booker, had the guidelines and the
appellate standard of review in mind when fashioning a
departure. A departure decision, even if “discretionary,” was
nevertheless informed by the guidelines and thus sheds
little light on what a sentencing judge would have done
knowing that the guidelines were advisory.
  Moreover, although the size of the departure was within
the court’s discretion, see U.S.S.G. § 5K1.1, the government
cites no examples of past cases in which this argument has
been accepted as basis for concluding that a guidelines mis-
application was harmless. Typically, we require a higher
degree of certainty for such a conclusion. For example, we
have noted that when a sentencing judge must choose be-
tween two sentencing ranges that overlap, and expressly
acknowledges that it would impose the same sentence
under either range, this court can be certain that an error
in choosing the wrong range was harmless. Jackson, 32
F.3d at 1110. But “there is no such certainty here.” See id.
Nor is this a case where the district court clearly stated
that it wanted to impose the maximum available sentence,
see United States v. Benitez, 92 F.3d 528, 539 (7th Cir. 1996),
or where the district court “erred on the high side but the
sentence could not have been any lower because of a stat-
utory minimum,” see United States v. Giacometti 28 F.3d
698, 704 (7th Cir. 1994). Ultimately, this court would have
to speculate that the district court’s error in thinking itself
bound by the guidelines did not affect the sentence.
No. 04-3398                                                 9

  The government next argues that the district court’s re-
jection of Schlifer’s motion for a downward departure under
§ 5K2.0 evinces its unwillingness to impose a lower sen-
tence. This argument is unpersuasive because it appears
that the district court simply did not agree that Schlifer had
presented a permissible basis for departure under that
guideline. In denying Schlifer’s motion, the court determined
that the circumstances of his case were not “outside the
heartland.” Given this determination, the district court did
not have a solid basis to depart under § 5K2.0. Thus the
court’s denial of Schlifer’s motion sheds no light on whether
the court would have departed had Schlifer presented dif-
ferent grounds, or whether the court might have granted
the very same motion had it known that Booker effectively
allows greater latitude in making departure decisions.
  Finally, the government makes the undeveloped argument
that the district court’s acknowledgment of Schlifer’s ex-
tensive criminal history reveals a disinclination to impose
a lesser sentence. The government provides no support for
this argument, and although the district court characterized
Schlifer’s criminal history as “horrendous,” it did so in the
context of explaining its decision to sentence him as a
career offender. Moreover, this court has acknowledged that
such comments are common at sentencing, and are not nec-
essarily evidence that an error was harmless. See Jackson,
32 F.3d at 1110. Thus, the most that can be inferred from
the district court’s statement is that Schlifer’s criminal
history warranted sentencing under § 4B1.1.
  The government ultimately fails to meet its burden of
demonstrating that, if the district court had known that the
guidelines are advisory rather than mandatory, its choice of
sentence would have been the same. While the result might
be different under a plain error standard, where the
defendant has the burden of demonstrating that his
substantial rights were affected, in this case the error
cannot fairly be deemed “harmless.”
10                                               No. 04-3398

                   III. CONCLUSION
  For the reasons stated above, we VACATE Schlifer’s
sentence and REMAND the case to the district court with
instructions to resentence in light of Booker.
  This opinion was circulated to the entire court before issu-
ance. No member of the court in active service voted to hear
the case en banc.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—4-7-05
