                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________
                                                                            FILED
                                 No. 04-14922
                                                                    U.S. COURT OF APPEALS
                             Non-Argument Calendar                    ELEVENTH CIRCUIT
                           ________________________                        July 11, 2005
                                                                       THOMAS K. KAHN
                       D.C. Docket No. 04-80022-CR-KLR                      CLERK


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

      versus

KEENAN HOLMES,

                                                    Defendant-Appellant.
                          __________________________

                Appeal from the United States District Court for the
                           Southern District of Florida
                          _________________________
                               (July 11, 2005)


Before BIRCH, BARKETT, and MARCUS, Circuit Judges.

PER CURIAM:

      Kennan Holmes appeals his total 240-month sentence, imposed after he pled

guilty to bank robbery by force and/or violence, in violation of 18 U.S.C. §§ 2113(a),
2113(d), and 2; conspiracy to commit bank robbery while armed, in violation of 18

U.S.C. §§ 2113(a), 2113(d), and 371; and possession of a firearm during the

commission of a felony, in violation of 18 U.S.C. §§ 924(c) and 2. We affirm.

      According to the PSI, Holmes’s Guidelines range, based on an adjusted offense

level of 31 and a criminal history category VI, was 262-327 months’ imprisonment.

At the sentencing hearing, the government moved for a downward departure, under

U.S.S.G. § 5K1.1, based on Holmes’s substantial assistance and recommended that

he be sentenced to a 200-month term of imprisonment. The district court granted the

government’s motion, but stated that it would mitigate the reduction in light of

Holmes’s criminal history and impose a 240-month term of imprisonment.

      On appeal, Holmes argues that because he was sentenced under a mandatory

Guidelines scheme that required the district court to consider only the career-offender

sentencing range in determining the departure amount, he was sentenced based on an

erroneous application of the Guidelines, in violation of United States v. Booker, 543

U.S. ----, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Because Holmes raised his

Booker objection in the district court, we review this claim de novo, but will reverse

only if any error was harmful. See United States v. Paz, 405 F.3d 946, 948 (11th Cir.

2005).




                                          2
      We have stated that two types of Booker error exist: constitutional error and

non-constitutional, or statutory, error. See United States v. Mathenia, 2005 WL

1201455, *2 (11th Cir. May 23, 2005). The latter type of error-- the kind asserted

here -- is subject to a less demanding harmless-error standard than that for

constitutional errors. 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.” Id. (internal quotations and citation omitted). Thus,

in cases involving preserved Booker non-constitutional error, the government must

show that the mandatory, as opposed to the advisory, application of the guidelines did

not contribute to the defendant’s sentence. Paz, 405 F.3d at 948-49 (holding that the

government could not meet its burden under harmless error analysis because the

record indicated that had the guidelines been advisory, defendant’s sentence would

have been shorter); see also United States v. Gallegos-Aguero, --- F.3d ---, 2005

WL1160635, *2 (11th Cir. May 18, 2005) (“Non-constitutional error is harmless

when it does not affect the substantial rights of the parties” (citing 28 U.S.C. §

2111)).




                                          3
       After thorough review of all relevant parts of the record, including the

sentencing transcript and the presentence investigation report, and careful

consideration of the parties’ briefs, we conclude that the district court’s imposition

of sentence, based on a mandatory application of the Guidelines, constituted

harmless error. Pursuant to the government’s § 5K1.1 motion, the district court

reduced Holmes’s sentence to 240 months’ imprisonment, specifically stating that it

had “to temper” the government’s requested reduction for a 200-month sentence to

take into account Holmes’s criminal history, which included many crimes of violence.

Moreover, in response to Holmes’s Booker objection, the district court stated that it

believed that the sentence was “a fair one,” notwithstanding the Guidelines.1 Indeed,

the court went on to note: “I will tell you that, if freed from the guidelines, it’s not

clear to me that the sentence would be any less. In fact, I think there’s a chance it

would have been higher.” On this record, it is clear that any Booker error resulting

from the district court’s application of the Guidelines in a mandatory fashion was

harmless as the error did not affect the sentence, or had but a slight effect.

Accordingly, we affirm.

       AFFIRMED.


       1
           Thus, this is not a case where the government has tried to satisfy its burden to show
harmlessness by relying only on the district court’s grant of a § 5K1,1 reduction. Compare United
States v. Davis, --- F.3d ----, 2005 WL 1033422 (11th Cir. May 4, 2005).

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