                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                         ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            February 15, 2006
                               No. 05-10127
                                                           THOMAS K. KAHN
                           Non-Argument Calendar               CLERK
                         ________________________

                     D. C. Docket No. 03-80146-CR-KAM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

CHARLES J. KERNS,

                                                           Defendant-Appellant.


                         ________________________

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

                             (February 15, 2006)


Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Charles Kerns appeals his sentence for conspiracy to commit securities and
wire fraud, securities fraud, wire fraud, and money laundering. He asserts he is

entitled to resentencing because the district court applied enhancements under the

Sentencing Guidelines based upon facts not found by the jury, charged in the

indictment, or admitted by him, pursuant to United States v. Booker, 125 S. Ct. 738

(2005). He also asserts the district court erred under Booker by applying the

Guidelines in a mandatory fashion. We vacate and remand for resentencing.

                                  I. DISCUSSION

      Because Kerns raised an objection pursuant to Blakely v. Washington, 124 S.

Ct. 2531 (2004), in the district court, we review his sentence de novo and reverse

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

Cir. 2005). We have explained there are two types of error under Booker: (1)

Sixth Amendment error based upon imposing sentencing enhancements in a

mandatory Guidelines system which were 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).

      Sixth Amendment error under Booker is disregarded only if harmless

beyond a reasonable doubt. Paz, 405 F.3d at 948 (11th Cir. 2005). “This standard

is only met where it is clear ‘beyond a reasonable doubt that the error complained



                                          2
of did not contribute to the sentence obtained.’” Id. (alteration and citation

omitted). The government bears the burden of showing the sentence did not affect

the defendant’s substantial rights. Id. Where we do not know what the district

court would have done under an advisory Guidelines scheme, the government

cannot meet its burden to show it is clear beyond a reasonable doubt the error

complained of did not contribute to the sentence obtained. United States v. Davis,

407 F.3d 1269, 1271-72 (11th Cir. 2005). Preserved statutory error under Booker

is subject to a “less demanding” standard than the beyond a reasonable doubt

standard applicable to Sixth Amendment errors under Booker. United States v.

Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005).

       Here, the Government concedes the district court committed error under

Booker, and the error was not harmless. We agree. Because the district court used

extra-verdict enhancements to increase Kerns’ sentencing range in a mandatory

Guidelines system, the district court committed Sixth Amendment error under

Booker.1 See Shelton, 400 F.3d at 1329-30. Because the district court sentenced




       1
          In committing Sixth Amendment error in this case, the district court applied: (1) a 2-
level increase for 10 or more victims under § 2B1.1(b)(1)(K); (2) a 2-level increase for
sophisticated means under § 2B1.1(b)(2)(A)(i); (3) a 4-level increase for substantially
endangering the solvency of a publicly traded company, under § 2B1.1(b)(12)(B)(ii)(I); and (4) a
2-level enhancement for obstruction of justice under § 3C1.1.

                                               3
Kerns pursuant to a mandatory Guidelines scheme, statutory error has also been

established. See id. at 1330-31.

      Though the district court stated “a sentence at the low end of the [G]uideline

range will be sufficient to deter future criminal conduct and would provide

sufficient punishment in this case,” that statement is insufficient to show the Sixth

Amendment error was harmless because it is not clear beyond a reasonable doubt

that the court would not have found another sentence to be more appropriate under

an advisory scheme. Accordingly, the Government cannot meet its burden to show

it is clear beyond a reasonable doubt the Sixth Amendment error complained of did

not contribute to the sentence obtained. See Davis, 407 F.3d at 1271-72. Because

there was Sixth Amendment error that was not harmless beyond a reasonable

doubt, we need not consider whether the statutory error was harmless.

                                   II. CONCLUSION

      We vacate Kerns’ sentence and remand the case for resentencing consistent

with Booker. We note the district court correctly calculated Kerns’ Guidelines

range of 324 to 405 months’ imprisonment. See United States v. Crawford, 407

F.3d 1174, 1178-79 (11th Cir. 2005) (stating after Booker, district courts must

consult the Guidelines and “[t]his consultation requirement, at a minimum, obliges

the district court to calculate correctly the sentencing range prescribed by the



                                           4
Guidelines”). Thus, on remand the district court is required to sentence Kerns

according to Booker, considering the Guidelines advisory range of 324 to 405

months’ imprisonment and “other statutory concerns as well, see [18 U.S.C.]

§ 3553(a) (Supp. 2004).” Booker, 125 S. Ct. at 757.2

       VACATED AND REMANDED.




       2
          We do not mean to suggest by our holding that the district court must impose any
particular sentence on remand. Rather, we merely hold the Government did not meet its burden
of showing the Sixth Amendment and statutory error under Booker was harmless. We also do
not attempt to decide now whether a particular sentence might be reasonable in this case.

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