                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              MAY 2, 2005
                               No. 04-14724                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                       D. C. Docket No. 03-00208-CR-CB

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                    versus

SANDRA HARRIS,
a.k.a. Sandra Keith,

                                                           Defendant-Appellant.


                         ________________________

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

                                 (May 2, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Sandra Harris appeals her conviction and 33-month sentence imposed after
she pled guilty to possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1). Specifically, Harris appeals her conviction and sentence on the

following two grounds: (1) the district court erred in denying her motion to dismiss

the indictment for lack of federal jurisdiction; and (2) the district court’s

enhancements of Harris’s sentence violated her Sixth Amendment rights.

I.     Background

       On or about, March 14, 2002, Harris shot her sister in the shoulder with a

.22-caliber pistol. Harris maintains that she did not intend to shoot her sister, and

insists that she thought that the gun was loaded with blank ammunition. It is

undisputed that Harris had previously been convicted of a felony. On September

24, 2003, a federal grand jury indicted Harris for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1).

       Initially, Harris entered a plea of not guilty and moved the court to dismiss

the indictment for lack of federal jurisdiction. After the district court denied her

motion, Harris entered into a written plea agreement, wherein she agreed to plead

guilty to the single count of the indictment. Harris also agreed to waive the right to

appeal her sentence, but reserved the right to appeal an enhancement imposed by

the district court for the use of a firearm during or in relation to certain crimes.1


       1
         The government does not argue in its brief that the appeal waiver provision prohibits
Harris from asserting that the district court violated her Sixth Amendment rights by cross-

                                                2
On May 12, 2004, Harris pled guilty before the district court, and the court

adjudicated her guilty.

       In the presentence investigation report (“PSI”), the probation officer cross-

referenced from § 2K2.1 (the guideline for an offense charged under 18 U.S.C. §

922(g)(1)) to § 2X1.1 to determine Harris’s base offense level because the

probation officer determined that Harris used the weapon in the commission of

another offense, aggravated assault. Cross-referencing again to the guideline

provision for the substantive offense of aggravated assault, § 2A2.2(a), the

probation officer calculated the base offense level as 15. The probation officer

then increased the base offense level by five levels because the firearm was

discharged, pursuant to § 2A2.2(b)(2)(A), and by two levels because Harris’s sister

sustained bodily injury, pursuant to § 2A2.2(b)(3)(A), for an adjusted base offense

level of 22. After a two level reduction for acceptance of responsibility pursuant to

§ 3E1.1(a) and another one level reduction pursuant to § 3E1.1(b), Harris’s total

adjusted offense level was 19. Her offense level of 19 and her criminal history

category of II resulted in a guideline imprisonment range of 33 to 41 months.

       In a written response to the PSI and at sentencing, Harris objected to the


referencing to § 2A2.2. Accordingly, we deem this argument abandoned. See United States v.
Rodriguez, 279 F.3d 947, 950 n.3 (11th Cir. 2002). Nonetheless, this appeal is not barred by the
sentence-appeal waiver in Harris’s plea agreement because the waiver includes an exception for
any enhancement applied by the district court for use of a firearm during another crime.

                                                3
enhancements as a violation of the Sixth Amendment as interpreted by Blakely v.

Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). At sentencing, the district court,

citing United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), vacated and

remanded by 125 S. Ct. 1003 (2005), summarily rejected Harris’s Blakely claim.

Harris then objected to the cross-reference to aggravated assault because: (1) she

was not charged with aggravated assault; and (2) aggravated assault is defined as

intent to cause physical injury to another with a weapon, and she did not intend to

cause her sister injury. After questioning Harris about the incident, the district

court found that the cross-reference to aggravated assault was appropriate and

calculated Harris’s sentence with the enhancements based on factual findings not

admitted by Harris. The judge then agreed with the probation officer and the

government that a sentence at the low end of the guidelines range was appropriate

and sentenced her to 33 months of incarceration. After commending the positive

changes that Harris had made in her life since the incident, the judge said, “Well,

the guidelines are such that I will have to impose a sentence in the penitentiary.”

Harris is currently incarcerated.

III.   Discussion

       A.    Constitutionality of Conviction

       Harris argues that the district court erred by denying her motion to dismiss



                                           4
for lack of federal jurisdiction because the government’s only evidence connecting

the firearm to interstate commerce was the fact that it was manufactured outside of

Alabama and traveled in interstate commerce.2 A constitutional challenge to §

922(g) is reviewed de novo. United States v. Dupree, 258 F.3d 1258, 1259 (11th

Cir. 2001).

       Section 922(g) requires a minimal nexus to interstate commerce; that

minimum nexus is satisfied when a defendant brandishes a firearm that was

manufactured in another state. Dupree, 258 F.3d at 1260. In Dupree, we

determined that § 922(g) is a constitutional exercise of Congress’s commerce

power. Id. Thus, the district court did not err in denying Harris’s motion to

dismiss for lack of federal jurisdiction because § 922(g) is a constitutional exercise

of Congress’s power, and we affirm on this issue.

       B.      Constitutionality of Sentence

       Harris also argues that her Sixth Amendment right to a jury trial was

violated because her sentence was enhanced, under a mandatory guidelines system,

based on facts found by a judge and not admitted by her. Since Harris preserved

this Sixth Amendment claim by raising the issue in the district court, we review her

sentence de novo, but will reverse only for harmful error. United States v. Paz,


       2
          Both at sentencing and in her brief, Harris states that she is presenting this argument
solely to preserve the issue for a possible later appeal.

                                                  5
11th Cir. 2005, __ F.3d __ (No. 04-20225, April 5, 2005) (citing United States v.

Sanchez, 269 F.3d 1250, 1272 (11th Cir. 2002)(en banc)). Because Harris never

admitted to intent, and § 2X1.1(a) allows for adjustments only for intended offense

conduct, the district court violated the Sixth Amendment by relying on facts not

admitted by Harris or found by a jury beyond a reasonable doubt. See United

States v. Booker, 543 U.S. __, __, 125 S. Ct. 738, 756 (2005).

      For this error to be harmless, the error must not affect the substantial rights

of Harris. See Paz, __ F.3d __ (citing United States v. Hernandez, 160 F.3d 661,

670 (11th Cir. 1998). “A constitutional error, such as a Booker error, must be

disregarded as not ‘affecting substantial rights,’ . . . if the error is ‘harmless beyond

a reasonable doubt.’ . . . This standard is only met where it is clear ‘beyond a

reasonable doubt that the error complained of did not contribute to the sentence

obtained.’” Id. (quoting United States v. Candelario, 240 F.3d 1300, 1307 (11th

Cir. 2001)).

      The government has the burden of showing that the constitutional error did

not affect Harris’s substantial rights. See id. (citing United States v. Olano, 507

U.S. 725, 741, 113 S. Ct. 1770, 1781 (1993)). Under the facts of this case, the

government has not met its burden. The error was not harmless beyond a

reasonable doubt because the judge’s statement that “the guidelines are such that I



                                            6
will have to impose a sentence in the penitentiary,” and the fact that Harris was

sentenced at low end of the guidelines range prevent us from concluding beyond a

reasonable doubt that the error complained of did not contribute to the sentence.

Therefore, we vacate Harris’s sentence and remand for re-sentencing under the

advisory guidelines system.

IV.   Conclusion

      The district court did not err in denying Harris’s motion to dismiss for lack

of federal jurisdiction because § 922(g) is a constitutional exercise of Congress’s

power. Harris’s sentence, however, was erroneously based in part on extra-verdict

enhancements, under a mandatory guidelines system. For the reasons stated above,

this error was not harmless. Accordingly, we vacate Harris’s sentence and remand

for re-sentencing consistent with this opinion.

CONVICTION AFFIRMED, SENTENCE VACATED AND REMANDED.




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