                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                 OCTOBER 28, 2005
                                 No. 04-14814                    THOMAS K. KAHN
                             Non-Argument Calendar                   CLERK
                           ________________________

                    D. C. Docket No. 03-00475-CR-T-24-MAP

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                       versus

TAMMI ANN ALLOWITZ,

                                                               Defendant-Appellant.

                           ________________________

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

                                 (October 28, 2005)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

      Tammi Ann Allowtiz appeals her convictions and 151-month sentence for

use of the Internet and telephone and travel in interstate commerce to solicit the
murder of her ex-husband, Darryl Cockcroft, all in violation of 18 U.S.C.

§ 1958(a). She presents two arguments on appeal. First, she argues that the district

court abused its discretion in allowing the government to present rebuttal testimony

by her son, Blaine Cockcroft. Specifically, Blaine testified that he was unaware

that Cockcroft had been abusive to his family. Second, she argues that the district

court committed reversible error under United States v. Booker, 543 U.S. ___, 125

S.Ct. 738, 756, 160 L.Ed.2d 621 (2005), by treating the federal sentencing

guidelines as mandatory. We affirm the conviction but reverse and remand as to

the sentence.

                                     Conviction

      We review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005). In this case we

cannot say the district court abused its discretion. The court permitted Blaine to

answer the limited questions of whether his father had been abusive because,

although not relevant to the offense charged, references to Allowitz’s statements

that she and her children were abused had been made throughout the trial.

                                      Sentence

      In United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 756, 160 L.Ed.2d

621 (2005), the Supreme Court held that “[a]ny fact (other than a prior conviction)



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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.” Booker, 543 U.S. at

___, 125 S.Ct. at 756.

      In a second and separate majority opinion, the Supreme Court concluded

that the sentencing guidelines must now be treated as advisory. Booker, 543 U.S.

at ___, 125 S.Ct. at 764. Accordingly, district courts are now required to consider

not only the applicable guidelines range, but also the full array of sentencing

factors enumerated at 18 U.S.C. § 3553(a). Id.

      We have noted that there are two types of Booker error. United States v.

Shelton, 400 F.3d 1325, 1300-31 (11th Cir. 2005). First, Sixth Amendment, or,

“constitutional,” Booker error occurs when a district court uses extra-verdict

enhancements to increase a defendant’s guidelines range and then treats that range

as mandatory. Shelton, 400 F.3d at 1330. Conversely, statutory Booker error

occurs every time a district court treats the guidelines range as mandatory,

regardless of whether it imposes any extra-verdict enhancements. Id. at 1330-31.

      Because no extra-verdict enhancements were ultimately used to assign the

base offense level or increase Allowitz’s sentence, no constitutional error occurred

under Booker. See id. at 1330. Because the district court sentenced her pursuant



                                           3
to the mandatory guideline scheme, however, a statutory error has been

established. Id. at 1330-31.

      We have clarified that a preserved “statutory” Booker error is subject to a

“less demanding” standard than the harmless-beyond-a-reasonable-doubt standard

applicable to “constitutional” Booker errors. United States v. Mathenia, 409 F.3d

1289, 1291-92 (11th Cir. 2005). Specifically, “[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 a very slight effect.” Mathenia,

409 F.3d at 1291-92. 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. at 1292. The government bears the burden to

demonstrate harmless error by showing that the error did not affect the defendant’s

substantial rights. United States v. Gallegos-Aguero, 409 F.3d 1274, 1277

(11th Cir. 2005).

      Upon review of the district court record and the briefs of the parties, we find

reversible error in this case. Although the district court sentenced Allowitz to the

high end of the applicable guideline range, the district court did not indicate

whether it believed that the 151-month sentence was the most appropriate sentence,

or whether it would have imposed the same sentence under an advisory scheme.



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Because it cannot be said “with fair assurance . . . that the [sentence] was not

substantially swayed by the error,” we vacate and remand for re-sentencing

consistent with Booker, 125 S.Ct. at 764. See Mathenia, 409 F.3d at 1292.

      Based upon the foregoing, Allowitz’s convictions are AFFIRMED, and her

sentence is VACATED AND REMANDED.




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