                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT         FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 July 12, 2005
                                 No. 04-15567
                                                              THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                       D.C. Docket No. 00-06024-CR-PAS

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                       versus

HENRY HERNANDEZ,

                                                           Defendant-Appellant.

                         __________________________

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

                                  (July 12, 2005)

Before ANDERSON, BLACK and HULL, Circuit Judges.

PER CURIAM:

      Henry Hernandez appeals his sentence imposed after pleading guilty to

possession with intent to distribute cocaine, a violation of 21 U.S.C. § 841(a)(1),
arguing the district court erred under United States v. Booker, 125 S. Ct. 738

(2005). We affirm Hernandez’s sentence.

                                  I. DISCUSSION

      Because Hernandez raised a constitutional objection to his sentence based

on Blakely v. Washington, 124 S. Ct. 2531 (2004), before the district court, we

review his sentence de novo, but will reverse only for harmful error. See United

States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We have clarified there are two

types of Booker error: (1) Sixth Amendment, or constitutional error based upon

sentencing enhancements, imposed under a mandatory Guidelines system, neither

admitted by the defendant nor submitted to a jury and proven beyond a reasonable

doubt; and (2) statutory error based upon sentencing under a mandatory

Guidelines system. United States v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir.

2005).

A.    Constitutional Error

      There is no Sixth Amendment error under Booker where the defendant has

admitted to facts later used by the district court to enhance a sentence. Id. at 1330.

A quantity of 15 kilograms but less than 50 kilograms of cocaine results in a base

level of 34. See U.S.S.G. § 2D1.1(c)(3). An enhancement for obstruction of

justice is proper where the defendant “escap[es] or attempt[s] to escape from

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custody before trial or sentencing.” See U.S.S.G. § 3C1.1, comment. (n.4(e)). In

the statement of facts supporting his plea agreement, Hernandez admitted that the

offense involved 35.01 kilograms of cocaine and that he fled DEA custody and

remained a fugitive for more than two years. Thus, Hernandez admitted the facts

supporting his base offense level of 34 and the enhancement for obstruction of

justice, and there is no Booker constitutional error.

B.    Statutory Error

      Even in the absence of a Sixth Amendment violation, Booker error exists

where the district court imposes a sentence under a mandatory Guidelines system.

Shelton, at 1330–31. The district court sentenced Hernandez under a mandatory

Guidelines system, thus statutory error exists. See 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. 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, 11th Cir., 2005, __ F.3d __ (No. 04-15250, May 23, 2005) (internal

quotation marks and brackets omitted). The Government has the burden of

showing the error was harmless. Id.




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      When imposing Hernandez’s sentence, the district judge stated that “if the

[G]uidelines are advisory or truly [G]uidelines as opposed to a rigid, I will still

impose the same sentence.” Accordingly, the Government has met its burden of

showing the Booker statutory error of sentencing Hernandez under a mandatory

Guidelines scheme was harmless. See United States v. Robles, 11th Cir., 2005, __

F.3d __ (No. 04-13598, May 10, 2005) (holding, under the higher beyond a

reasonable doubt standard used in Booker constitutional error cases, that although

the district court erred in imposing a sentence under a mandatory Guidelines

system based on facts not admitted by the defendant, the error was harmless

beyond a reasonable doubt because “[t]he district court stated its sentence would

be the same even if the [G]uidelines were only advisory”).

                                 II. CONCLUSION

      There was no Booker constitutional error because Hernandez admitted the

facts used in imposing his sentence. Additionally, the Government has met its

burden of showing the Booker statutory error of sentencing Hernandez under a

mandatory Guidelines scheme was harmless.

      AFFIRMED.




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