                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             September 16, 2005
                              No. 05-10251                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 04-80053-CR-DTKH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

IVAN GIBSON,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                            (September 16, 2005)


Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Ivan Gibson appeals his 180-month sentence, imposed after he pled guilty to
possessing a firearm after having been convicted of a crime punishable by a term

of imprisonment exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e) (Count 1), and possessing cocaine, in violation of 21 U.S.C. § 844 (Count

2). On appeal, Gibson argues that the district court’s enhancement of his sentence,

based on a finding that he was an armed career criminal, violated United States v.

Booker, 543 U.S. ____, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621 (2005), and Blakely

v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because

his prior convictions were not alleged in the indictment, admitted by him, or

established beyond a reasonable doubt to a jury. We affirm.

      Because Gibson preserved his Booker claim in the district court, our review

is de novo, but we will reverse and remand only for harmful error. See United

States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). Preserved constitutional and

statutory errors under Booker are reviewed for harmless error. See United States v.

Mathenia, 409 F.3d 1289, 1291-93 (11th Cir. 2005).            Constitutional error is

“harmless” when the government can show beyond a reasonable doubt that the

error did not contribute to the defendant’s ultimate sentence. Id. at 1291. We

review statutory error under a less demanding test: whether a review of the

proceedings, as a whole, shows that the error either did not affect the sentence or

had only a slight effect. Id. at 1291-92. “If one can say with fair assurance that the



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sentence was not substantially swayed by the error, the sentence is due to be

affirmed even though there was error.” Id. at 1292 (internal marks omitted). The

government has the burden of proof under both standards. Id.

      The facts relevant to Gibson’s Booker claim are these. After pleading guilty,

Gibson proceeded to sentencing.     The presentence investigation report (“PSI”)

calculated a base offense level of 24 for Count 1, pursuant to U.S.S.G.

§ 2K2.1(a)(2), and a base offense level of 6 for Count 2, pursuant to U.S.S.G. §

2D2.1. The PSI determined that the offenses could not be grouped under U.S.S.G.

§ 3D1.2 and stated Gibson’s combined adjusted offense level was 24, pursuant to

U.S.S.G. § 3D1.4.

      The PSI then determined that Gibson was an armed career criminal because

he was subject to an enhanced sentence under 18 U.S.C. § 924(e), pursuant to

U.S.S.G. § 4B1.4(a).    Gibson had prior convictions for burglary, carrying a

concealed firearm, possession of heroin with intent to sell, and battery on a law

enforcement officer. The PSI enhanced Gibson’s offense level to 33, pursuant to

U.S.S.G. § 4B1.4(b)(3)(B).       After a 3-level reduction for acceptance of

responsibility, U.S.S.G. § 3E1.1(a), Gibson’s adjusted offense level was 30. With

a criminal history category VI, his Guidelines sentencing range was 168 to 210

months’ imprisonment.



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      Finally, the PSI stated that Count 1 carried a statutory minimum 15-year

term of imprisonment, while the statutory term of imprisonment for Count 2 was

zero to one year. Based on the statutory minimum sentence for Count 1, the PSI

adjusted the Guideline range to 180 to 210 months’ imprisonment, pursuant to

U.S.S.G. § 5G1.1(c)(2).

      Over Gibson’s objections, including an objection based on Blakely, the

district court imposed a 180-month term of imprisonment on Count 1 and a 12-

month term of imprisonment on Count 2, to run concurrently, and five years’

supervised release. This appeal followed.

      The Supreme Court has held that the government need not allege in the

indictment nor prove beyond a reasonable doubt the fact that a defendant had prior

convictions in order for a district court to enhance a defendant’s sentence based on

those convictions. Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.

Ct. 1219, 140 L. Ed. 2d 350 (1998). In Booker, the Court reiterated its holding in

Almendarez-Torres.     See 125 S. Ct. at 756 (“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.”)

(emphasis added); see also United States v. Orduno-Mireles, 405 F.3d 960, 962-63



                                         4
(11th Cir. 2005) (holding that after Booker, “Almendarez-Torres remains the law

until the Supreme Court determines that [it] is not binding precedent.”). Based on

this binding precedent, we reject Gibson’s argument that his Fifth and Sixth

Amendment rights were violated when his sentence was enhanced based on his

recidivism and find no Booker constitutional error here.1

       While the district court committed no constitutional error, Booker non-

constitutional, or statutory, error exists when the district court misapplies the

Guidelines by considering them as binding as opposed to advisory. See United

States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).                  Here, the district

court sentenced Gibson under a mandatory Guidelines scheme but imposed

sentence in accordance with a statutorily mandated minimum term.                      We have

concluded that Booker “does not undermine the validity of minimum mandatory

sentences, at least not where the enhanced minimum does not exceed the

non-enhanced maximum.” Spero v. United States, 375 F.3d 1285, 1286 (11th Cir.

2004), cert. denied,--- U.S. ----, 125 S. Ct. 1099, 160 L. Ed. 2d 1084 (2005), and

cert. denied,--- U.S. ----, 125 S. Ct. 1345, 161 L. Ed. 2d 143 (2005).

       In the instant case, the statutory minimum for Gibson’s § 922(g)(1) offense,


       1
        The Supreme Court's decision in Shepard v. United States, --- U.S. ----, 125 S. Ct. 1254,
161 L. Ed. 2d 205 (2005), does not alter this conclusion. See United States v. Gallegos-Aguero,
409 F.3d 1274, 1276-77 (11th Cir. 2005);United States v. Camacho-Ibarquen, 410 F.3d at 1307,
1316 n.3 (11th Cir. 2005).

                                                5
without reference to his recidivism, was 180 month’s imprisonment. See 18 U.S.C.

§ 924(e)(1). Accordingly, although the district court stated that it was applying the

Guidelines in a mandatory fashion, any Booker error did not affect Gibson’s

sentence because a 180-month sentence was mandated by statute.            Cf. United

States v. Raad, 406 F.3d 1322, 1323 n. 1 (11th Cir.) (finding harmless Booker error

where district court sentenced defendant in accordance with mandatory minimum

sentence statute), petition for cert. filed, No. 05-5281 (Jul. 5, 2005). After Booker,

district courts remain bound by statutory minimum sentences. See Shelton, 400

F.3d at 1333 n.10. Thus, we readily conclude that any Booker statutory error in

this case was harmless because the court could not have imposed a lesser sentence

due to the statutory minimum.

      AFFIRMED.




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