                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT         FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              July 20, 2005
                              No. 04-16627
                                                           THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D.C. Docket No. 04-00044-CR-4-RH

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

     versus

MARCEL JOSEPH,
a.k.a. Mike Mac Thompson,

                                                       Defendant-Appellant.

                       __________________________

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

                                (July 20, 2005)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:
      Marcel Joseph appeals his sentence stemming from his plea of guilty to

unlawfully reentering the United States, in violation of 8 U.S.C. §§ 1326(a),

(b)(2). First, he asserts that the district court erred by sentencing him under a

mandatory guideline scheme.

      Because Joseph’s sentencing occurred prior to United States v. Booker, 543

U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Joseph did not make an

objection before the district court concerning the mandatory nature of the federal

sentencing guidelines. Nevertheless, a review of the record reveals that Joseph’s

objection before the district court invoked Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Additionally, the district court’s

description of Joseph’s objection during the sentencing hearing established that

the court understood Joseph’s objections to be “based on the Blakely line of

cases.”

      In Booker, the Supreme Court held “that the Sixth Amendment right to trial

by jury is violated where under a mandatory guidelines system a sentence is

increased because of an enhancement based on facts found by the judge that were

neither admitted by the defendant nor found by the jury.” United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied, 2005 WL 483174,

73 USLW 3531 (U.S. Jun 20, 2005) (emphasis in original). The Court reaffirmed

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its holding in Apprendi that “any fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at 756.

      This Court has determined that there are two types of Booker error that may

have been committed by district courts: constitutional error and statutory error.

United States v. Mathenia, __ F.3d __, 2005 WL 1201455 at *2 (11th Cir. May 23,

2005). “The constitutional error is the use of extra-verdict enhancements to reach

a guidelines result that is binding on the sentencing judge; the error is in the

mandatory nature of the guidelines once the guidelines range has been

determined.” Id. (internal quotations omitted). “The statutory error occurs when

the district court sentences a defendant under a mandatory guidelines scheme,

even in the absence of a Sixth Amendment enhancement violation.” Id. (internal

quotations omitted).

      This Court reviews preserved errors for harmlessness. Id. There are two

harmless error standards, one of which applies to Booker constitutional error, and

the other to Booker statutory error. Id. “[C]onstitutional errors are harmless

where the government can show, beyond a reasonable doubt, that the error did not

contribute to the defendant’s ultimate sentence.” Id. Booker statutory errors,

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however, are subject to a less demanding test. Id. “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.” Id. (internal

quotations omitted). “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.” Id. (internal quotations and ellipses omitted). “The non-

constitutional harmless error standard is not easy for the government to meet. It is

as difficult for the government to meet that standard as it is for a defendant to meet

the third-prong prejudice standard for plain error review.” Id.

      The district court erred when it sentenced Joseph under a mandatory

guideline scheme. The government has not met its burden of demonstrating that

the error did not affect Joseph’s sentence, and therefore, it was not harmless.

      Next, Joseph asserts that the district court did not have the authority to

increase the statutory maximum sentence applicable to his offense as a result of a

prior conviction because the indictment did not allege that he had been convicted

of an aggravated felony. He concedes that the Supreme Court rejected this same

argument in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219,

140 L.Ed.2d 350 (1998). He also notes that the Supreme Court excluded the fact

of prior convictions from those facts that must be proven to a jury or admitted by a

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defendant to increase a sentence beyond the statutory maximum. He asserts that

the continued validity of Almendarez-Torres is questionable.

      Section 1326 prohibits aliens from reentering the United States after their

removal without prior authorization. 8 U.S.C. § 1326(a). The statutory maximum

sentence for the offense is generally two years; however, when the alien’s removal

was subsequent to a conviction for an aggravated felony offense, the statutory

maximum is increased to 20 years’ imprisonment. § 1326(a), (b)(2).

      In Almendarez-Torres, “the Supreme Court held that the government need

not allege in its indictment and need not prove beyond a reasonable doubt that a

defendant had prior convictions for a district court to use those convictions for

purposes of enhancing a sentence.” United States v. Marseille, 377 F.3d 1249,

1257 (11th Cir.), cert. denied, 125 S.Ct. 637 (2004). This decision “was left

undisturbed by Apprendi, Blakely, and Booker.” United States v. Shelton, 400

F.3d 1325, 1329 (11th Cir. 2005).

      The district court did not err in determining the statutory maximum sentence

applicable to Joseph’s offense because, as established by Almendarez-Torres, the

government was not required to allege prior convictions in the indictment.

Although Joseph questions the continued validity of Almanderez-Torres, the

Apprendi line of cases did not affect the Almanderez-Torres holding, and we

                                          5
cannot overrule a Supreme Court decision. See Shelton, 400 F.3d at 1329; see

also United States v. Guadamuz-Solis, 232 F.3d 1363 (11th Cir. 2000).

      Upon review of the record and the parties’ briefs, we find reversible error.

Because the district court erred by sentencing Joseph under a mandatory guideline

scheme, we vacate his sentence and remand for re-sentencing.

      VACATE AND REMAND.




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