                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 04-14686                   JULY 7, 2005
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                    D. C. Docket No. 04-20168-CR-UUB

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

     versus


ROBERTO AMILCAR MENDEZ-ORTIZ,

                                                         Defendant-Appellant.


                        ________________________

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

                               (July 7, 2005)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Roberto Amilcar Mendez-Ortiz appeals his 46-month sentence imposed after
he pleaded guilty to one count of illegal reentry of a previously deported alien, a

violation of 8 U.S.C. sections 1326(a) and (b)(2). At sentencing, Mendez-Ortiz

raised an objection under Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531

(2004). On appeal, Ortiz argues that because the district court considered the

Sentencing Guidelines to be mandatory, he should be re-sentenced in the light of

United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005). Because the district

court stated during sentencing that it would impose the same sentence even if the

Guidelines were held unconstitutional, the error of applying advisory Guidelines as

mandatory was harmless, and we affirm Mendez-Ortiz’s sentence.

      The district court erred under Booker by treating the Sentencing Guidelines

as mandatory when it sentenced Mendez-Ortiz. United States v. Shelton, 400 F.3d

1325, 1330-31 (11th Cir. 2005). This is the only error Mendez-Ortiz raises on

appeal. Because the error of the district court was non-constitutional, however, our

review for harmless error is less stringent:

      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, ___ F.3d ___, 2005 WL 1201455, at *2 (11th Cir. May

23, 2005) (internal quotations and citations omitted). As it was imposing sentence,



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the district court stated that it imposed “as an alternative sentence, in the event that

the Federal Sentencing Guidelines are found to be unconstitutional, also a 46-

month sentence because the Court believes a 46-month sentence is most

appropriate under the circumstances in light of the defendant’s criminal history.”

Because the district court would have imposed the same sentence if the Guidelines

were not mandatory, the statutory error was harmless.

      AFFIRMED.




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