                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                               U.S.
                       ________________________ ELEVENTH CIRCUIT
                                                              June 8, 2005
                              No. 04-13961                 THOMAS K. KAHN
                                                               CLERK
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 04-00004-CR-FTM-29SPC

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

     versus

ROBERT R. CURTIS,
a.k.a. Play,

                                                       Defendant-Appellant.

                       __________________________

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

                                (June 8, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Robert R. Curtis appeals his 169-month sentence for the distribution of

cocaine base, in violation of 21 U.S.C. § 841. Curtis entered a guilty plea without

a plea agreement, which the district court accepted. At sentencing, the court

calculated Curtis’s base offense level on the basis of (1) his three prior convictions

for the sale of cocaine, which qualified him for career offender status under

U.S.S.G. § 4B1.1, and (2) the fact that Curtis’s instant offense of conviction

carried a maximum sentence of 20 years. See U.S.S.G. § 4B1.1(b) (instructing that

the offense level be set at the greater of either the offense level for a career

offender under § 4B1.1 or the offense level otherwise applicable).

      Curtis argued at sentencing that Blakely v. Washington prohibits federal

courts from sentencing defendants based on uncharged relevant conduct that is

neither stipulated to by the defendant nor proven to a jury beyond a reasonable

doubt. See 542 U.S. ___, 124 S. Ct. 2531 (2004). Thus, he argues, the guideline

provisions that allow for such enhancements are unconstitutional. Curtis further

argues that the reasoning behind exempting prior convictions from the holding in

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and

Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), has

been undermined by subsequent cases. Curtis thus claims that even if the fact of a

prior conviction is exempted from the Blakely rule, the career offender provision

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in U.S.S.G. § 4B1.1 does not survive constitutional scrutiny because his sentence

was increased based on additional facts that were not charged in the indictment or

stipulated to at the plea hearing. The facts with which he takes issue are: (1) he

was at least 18 years old when he committed the instant offense, (2) the instant

offense was a felony involving a controlled substance, and (3) Curtis had two prior

felony convictions that were either crimes of violence or controlled substance

offenses. Curtis also argues that, apart from his sentencing enhancement, the

sentencing court erroneously believed that it had no authority to impose a lesser

sentence than the guidelines required and, thus, sentenced Curtis under an

incorrect legal standard.

      In the post-Booker era, we have explained that there are two types of Booker

error: (1) a Sixth Amendment error–that is, imposing a sentencing enhancement

based on judicial findings that go beyond the facts admitted by the defendant or

found by the jury, and (2) statutory error–being sentenced under a sentencing

guidelines scheme that is mandatory. United States v. Shelton, 400 F.3d 1325,

1330–31 (11th Cir. 2005).

A.    Sixth Amendment Error

      U.S.S.G. § 4B1.1(a) states: “A defendant is a career offender if (1) the

defendant was at least eighteen years old at the time the defendant committed the

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instant offense of conviction; (2) the instant offense of conviction is a felony that

is either a crime of violence or a controlled substance offense; and (3) the

defendant has at least two prior felony convictions of either a crime of violence or

a controlled substance offense.” If a court finds a defendant to be a career

offender under § 4B1.1(a), the defendant’s offense level is enhanced under

§ 4B1.1(b). See U.S.S.G. § 4B1.1(b) (setting the base offense level at the greater

of either the offense level for a career offender under § 4B1.1 or the offense level

otherwise applicable).

      In Booker, the Supreme Court “left undisturbed its holding in

[Almendarez-Torres], that recidivism is not a separate element of an offense that

the government is required to prove beyond a reasonable doubt.” United States v.

Orduno-Mireles, No. 04-12630, slip op. at 1792 (11th Cir. Apr. 6, 2005); see also

United States v. Camacho-Ibarquen, 404 F.3d 1283, 1290 (11th Cir. 2005).

Moreover, the Court reaffirmed Apprendi’s holding that “[a]ny 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.”

Orduno-Mireles, No. 04-12630, slip op. at 1792. Accordingly, in Orduno-Mireles

we observed that “the Court’s holding in Booker . . . is not implicated when a

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defendant’s sentence is enhanced based on a prior conviction.” Id.; see also

United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir. 2004).

      Because Almendarez-Torres remains good law, the sentencing court did not

err in finding that Curtis should receive an enhancement pursuant to § 4B1.1 as a

career offender based on his prior convictions.

      To the extent that the Supreme Court’s recent decision in Shepard arguably

undermined Almendarez-Torres, that decision does not undermine our outcome

here. See Shepard v. United States, __ U.S. __, 125 S. Ct. 1254 (2005). Curtis

stated at sentencing that he had “no factual objections” to the presentence

investigation report. Therefore, the sentencing court did not resolve disputed

facts, but based its sentence on admitted facts. See Shepard, 125 S.Ct. at 1263;

see also United States v. Burge, No. 04-13468, manuscript op. at 17 (11th Cir.

May 2, 2005) (noting that the defendant had waived his objections to the factual

statements in the presentence investigation report and, therefore, had “admitted”

those facts). Moreover, there is no doubt that the prior offenses, of which there

were many more than the two required, were felonies involving controlled

substances. Suffice it to say that, in this case, we are not presented with an

opportunity to determine the implications and reach of Shepard. Thus, we




                                          5
conclude that the district court’s use of prior convictions to enhance Curtis’s

sentence did not violate the Sixth Amendment.

B.    Statutory Error

      Due to the nature of the Supreme Court’s Booker remedy, we have

concluded that a district court has committed Booker error whenever it sentences a

defendant under a mandatory guidelines scheme, even in the absence of a Sixth

Amendment error. Shelton, 400 F.3d at 1330–31.

      Next we consider whether the error was harmless. When an error is

nonconstitutional, it is harmless if it does not affect the substantial rights of the

parties. See 28 U.S.C. § 2111; United States v. Guzman, 167 F.3d 1350, 1353

(11th Cir. 1999). “[A] nonconstitutional error requires reversal only if it resulted

in actual prejudice because it had substantial and injurious effect.” Guzman, 167

F.3d at 1353 (internal quotations and citation omitted). The government bears the

burden of showing that the error did not affect Curtis’s substantial rights. United

States v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998). The government has met

its burden.

      First, the district court imposed a sentence in the middle of the guidelines

range. The court could have sentenced Curtis to a sentence on the low end of the

spectrum, but did not do so. Second, the court could have departed from the

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guidelines pursuant to U.S.S.G. § 4A1.3, but declined defense counsel’s invitation

to do so. When defense counsel asked the court to find that Curtis’s criminal

history category overrepresented his actual criminal history, which counsel

characterized as “consistent with somebody who is simply trying to support their

own habit,” the court declined. Citing the pattern of criminal activity beginning in

1984 and progressing since then, the court denied defense counsel’s motion to

depart downward. The record establishes that, even though the district court

committed statutory Booker error, that error was harmless because it did not have a

substantial and injurious effect on Curtis’s sentence.

      For the foregoing reasons, we affirm the district court’s sentence.

      AFFIRMED.




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