                                                  [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT
                   ________________________               FILED
                                                 U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
                           Nos. 04-15223              December 1, 2005
                                04-15224           THOMAS K. KAHN
                         Non-Argument Calendar         CLERK
                     ________________________

                        D. C. Docket Nos.
              03-60282-CR-KAM & 03-20989-CR-JEM

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                              versus

LEONARDO CASTELLI,
a.k.a. Leo,

                                                  Defendant-Appellant.


                  _________________________

                         Nos. 04-15225
                              04-15226
                     Non-Argument Calendar
                  _________________________


                        D. C. Docket Nos.
               03-20516-CR-AJ & 03-20513-CR-UUB
UNITED STATES OF AMERCIA

                                                                            Plaintiff-Appellee,

                                             versus

LEONARDO CASTELLI,
a.k.a. Peter Leo,

                                                                        Defendant-Appellant.

                               ________________________

                      Appeals from the United States District Court
                          for the Southern District of Florida
                            _________________________
                                  (December 1, 2005)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

       Defendant Leonardo Castelli appeals his concurrent 60-month sentences,

which were imposed at a consolidated sentencing hearing (1) after a jury found

him guilty of various conspiracy and mail, wire, and bank fraud offenses in two

indictments consolidated for trial,1 and (2) after he entered a guilty plea in relation


       1
         Specifically, Castelli was charged in a seven-count indictment with: (1) conspiracy to
commit mail fraud and to use a forged and counterfeit seal, in violation of 18 U.S.C. § 371
(Count 1); (2) mail fraud, in violation of 18 U.S.C. § 1341 (Counts 2-6); and (3) use of a forged
and counterfeit seal, in violation of 18 U.S.C. § 505 (Count 7). In a second, separate indictment
Castelli was charged with 14 counts, including: (1) conspiracy to commit bank fraud, wire fraud,
and mail fraud, in violation of 18 U.S.C. § 371 (Count 1); (2) bank fraud, in violation of 18
U.S.C. § 1344 (Counts 2-4); (3) wire fraud, in violation of 18 U.S.C. § 1343 (Counts 5-7); and
(4) mail fraud, in violation of 18 U.S.C. § 1341 (Counts 8-14).
        The government filed a motion requesting the consolidation of the two separate

                                                2
to another conspiracy charge in a third indictment.2 Castelli also appeals a

separate, concurrent 60-month sentence, which was imposed at a separate

sentencing hearing after he pled guilty to an additional conspiracy charge in a

fourth indictment before a different district court judge.3 Four separate cases,

including two separate sentencing hearings before two different district courts,

have been consolidated for purposes of this appeal. After review, we affirm

Castelli’s sentences.

       Essentially Castelli, who worked from his home as a “financial consultant,”

claimed that he could help automobile dealerships procure credit for individuals

with poor credit histories and low credit ratings so that they could purchase

automobiles. For certain purchasers who would not otherwise qualify for loans,

Castelli created false, fraudulent, and counterfeit documents, which were submitted


indictments for trial, and the motion was granted. After a jury trial, Castelli was found guilty as
to all counts contained in the first indictment, and guilty of Counts one and three through 14 of
the second indictment.
       2
         In a third indictment, Castelli was charged with one count of conspiracy to commit
fraud, in violation of 18 U.S.C. § 371 (Count 1), and five counts of mail fraud, in violation of 18
U.S.C. § 1341 (Counts 2-6). Pursuant to a written plea agreement, Castelli pled guilty to Count
one. The district court granted Castelli’s motion requesting that the proceeding be transferred
for sentencing before the same district court judge that was sentencing him for the convictions
based on the first two indictments.
       3
        In a fourth indictment, Castelli was charged with one count of conspiracy to commit
mail fraud, in violation of 18 U.S.C. § 371 (Count 1), and three counts of mail fraud, in violation
of 18 U.S.C. § 1341 (Counts 2-4). Pursuant to a plea agreement, Castelli pled guilty to Count
one. However, the district court denied Castelli’s motion seeking to transfer and consolidate the
fourth case for sentencing with his three related cases pending before a different judge.

                                                 3
to lenders in support of purchasers’ loan applications. Castelli created false

documents – such as pay stubs and statements, forged and counterfeit United States

Bankruptcy Court orders, Internal Revenue Service forms, social security letters,

child support statements, bank statements, and utility bills – for the automobile

purchasers, and he knew that these documents would be submitted to lenders to

ensure that the purchasers obtained financing.

      Although his sentences on the four indictments were imposed in two

separate sentencing proceedings, Castelli raises the same two assertions of error:

the district court (1) violated United States v. Booker, 125 S. Ct. 738 (2005); and

(2) erred in granting the government’s request for an upward departure.



                                      I. Booker

      In Booker, the Supreme Court held that Blakely v. Washington, 5452 U.S.

296, 124 S. Ct. 2531 (2004), applied to the Sentencing Guidelines. United States

v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert. denied, 125 S. Ct. 2935

(2005). “Under [Booker,] there are two kinds of sentencing errors: one is

constitutional and the other is statutory.” United States v. Dacus, 408 F.3d 686,

688 (11th Cir. 2005). “[T]he Sixth Amendment right to trial by jury is violated

where under a mandatory guidelines system a sentence is increased because of an



                                          4
enhancement based on facts found by the judge that were neither admitted by the

defendant nor found by the jury.” Rodriguez, 398 F.3d at 1298. The constitutional

error is not because there were extra-verdict enhancements; rather, “[t]he error is

that there were extra-verdict enhancements used in a mandatory guidelines

system.” Id. at 1300. 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.” United States v. Shelton, 400 F.3d 1325,

1330-31 (11th Cir. 2005).

       In both sentencing proceedings, the district courts committed constitutional

Booker error. That is, both district courts imposed loss and special skill

enhancements under a mandatory guideline system based on facts neither admitted

by the defendant nor proven beyond a reasonable doubt.4 See U.S.S.G. § 2F1.1

(1998) (amount of loss); § 3B1.3 (1998) (use of special skill). However, this Court

will still affirm Castelli’s 60-month sentences if the government establishes that

any error was harmless.5


       4
         The defendant does not challenge the factual basis of either of the enhancements in his
opening brief, and, thus, any sufficiency-of-the-evidence challenge to those enhancements is
abandoned. See United States v. Duncan, 400 F.3d 1297, 1300 n.1 (11th Cir.), cert. denied, 126
S. Ct. 432 (2005). Furthermore, the defendant’s assertion in his reply brief that the
enhancements were “not appropriate” is insufficient to place these issues before this Court. See
United States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002).
       5
       Because Castelli challenged below, on Blakely grounds, the imposition of the sentencing
enhancements under U.S.S.G. §§ 2F1.1 and 3B1.3, this Court reviews his Booker argument on

                                                5
       There are two harmless error standards, one that applies to constitutional

errors, and one that applies to statutory errors. United States v. Mathenia, 409 F.3d

1289, 1291 (11 th Cir. 2005). “[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. In contrast, Booker statutory errors are

subject to the less demanding non-constitutional error test. Id. at 1292.

       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.

Id. (internal quotation marks, alterations, and citations omitted). The government

has the burden of proof under both standards. See id.

       In this case, the defendant’s guidelines range in both sentencing proceedings

was 37-46 months’ imprisonment. However, both district court judges upwardly

departed to the statutory maximum for the offenses and sentenced the defendant to

concurrent 60-month sentences.

       In this case, both district courts determined that the amount of loss did not

accurately reflect the level of harm caused by Castelli’s fraudluent conduct. Based


appeal de novo. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005); see also United
States v. Dowling, 403 F.3d 1242, 1246 (11th Cir.), cert. denied, 126 S. Ct. 462 (2005)
(explaining that a defendant’s citation to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000), or “other cases in that line of cases,” serves to preserve a Booker claim).

                                               6
on these determinations, the district courts upwardly departed outside the

guidelines range and sentenced Castelli to the statutory maximum sentence, a

sentence that was 13 months greater that the high end of the guidelines range.

Thus, both district courts imposed the statutory maximum even though they were

not required to do so by the guidelines. Therefore, the government has established

that the mandatory nature of the guidelines did not contribute to the defendant’s

ultimate sentences. Under these particular circumstances, we readily conclude that

the government has carried its burden of demonstrating that the Booker error in

this case was harmless beyond a reasonable doubt.

                                  II. Upward Departure

       Castelli also appeals the district courts’ decisions to apply upward departures

to the statutory maximum term of 60 months’ imprisonment.6 According to the

first district court, the upward departure was warranted because the amount of loss

did not accurately reflect the defendant’s criminal culpability. Specifically, the

district court stated:

       I think that [the failure of the calculated loss amount to adequately
       reflect the scope of Castelli’s conduct] is a rationale for an upward
       departure in this case. But I also think that . . . the purchasers of the


       6
         We review a district court’s decision to grant an upward departure for abuse of
discretion. United States v. Melvin, 187 F.3d 1316, 1320 (11th Cir.1999); see also United States
v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (stating that “pre-Booker standards for
reviewing application of the Sentencing Guidelines still apply”).

                                                7
      cars were as much victims as anyone is another reason to upwardly
      depart. The loss amounts do not reflect – and none of these
      calculations reflect, in my opinion – the damage that was done to the
      people, the unknowing victims here, the people who bought the cars
      under circumstances that they could not afford.

The second district court likewise concluded that the defendant’s loss amount did

not “fully capture the harmfulness and seriousness of the conduct. In this case the

seriousness and scope of the fraudulent scheme is not captured by the loss

amount.”

      Section 2F1.1 encourages departures in cases “in which the loss determined

under subsection (b)(1) does not fully capture the harmfulness and seriousness of

the conduct.” See U.S.S.G. § 2F1.1, cmt. n.10. There was extensive evidence at

both sentencing proceedings that Castelli’s fraudulent activities extended beyond

the loans included in the calculation of the loss amount. That, plus the fact that

Castelli’s criminal conduct clearly affected numerous low-income automobile

purchasers, leads us to conclude that the two district courts did not abuse their

discretion in concluding that this case fell “outside the heartland” and that an

upward departure was warranted.

      For all the above reasons, we affirm Castelli’s 60-month concurrent

sentences.

      AFFIRMED.



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