                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                 U.S.
                        ________________________   ELEVENTH CIRCUIT
                                                                MAY 16, 2005
                                No. 04-14036                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                   D.C. Docket No. 04-00019-CR-T-26-MSS

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

      versus

JOHN KANGAS,

                                             Defendant-Appellant.
                        __________________________

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

                                  (May 16, 2005)

Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

      John Kangas appeals his 120-month sentence imposed after he pled guilty to

one count of possessing child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5) (2005).1 On appeal, Kangas argues that, in light of Blakely v.

Washington, 124 S.Ct. 2531 (2004), the district court erred in enhancing his

sentence based on Kangas’s prior federal child pornography conviction where that

conviction was not charged in the indictment, proved to a jury, or expressly

admitted. Kangas further contends that the Supreme Court’s decision in

Almendarez-Torrez v. United States, 523 U.S. 224 (1998) (holding that the fact of

a prior conviction need not be alleged in the indictment or submitted to the jury),

does not apply to a defendant who has not admitted to his prior conviction.

Kangas argues that Almendarez-Torrez has been “gravely wounded” by the

subsequent decisions of Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely, and as such, should only be applied to cases where the facts closely

match those addressed in Almendarez-Torrez.

                                STANDARD OF REVIEW

       Because Kangas raised his Blakely challenge below, preserving the issue for

appellate review, we review his sentence de novo, but will reverse and remand

only for harmful error. United States v. Riley, 250 F.3d 1303, 1307 n.5 (11th Cir.

2001).



       1
          As discussed below, the order of judgment entered by the district court erroneously cites
the statute of conviction as “18 U.S.C. § 2252A(a)(2)” rather than 18 U.S.C. § 2252A(a)(5).

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                                   DISCUSSION

      Kangas was sentenced pursuant to 18 U.S.C. § 2252A(b)(2), which provides

for a minimum sentence of 10 years’ imprisonment for a violation of §

2252A(a)(5) if the defendant has a prior federal child pornography conviction.

Based on his prior conviction, for which Kangas was still under supervised release

at the time of his offense, the district court sentenced Kangas to the statutory

minimum of ten years (120 months) in prison.

      In United States v. Booker, 125 S.Ct. 738 (2005), which was announced

after the parties filed their appellate briefs, the Supreme Court held that the

mandatory nature of the guidelines rendered them incompatible with the Sixth

Amendment’s jury trial guarantee. However, Booker makes clear that there is no

Sixth Amendment violation where the district court uses prior convictions to

enhance a defendant’s sentence. See Booker, 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). Booker thus casts no constitutional doubt on a district

court’s ability to rely on prior convictions to enhance a defendant’s sentence, as

the defendant’s prior conviction “must itself have been established through

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procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.”

United States v. Orduno-Mireles, No. 04-12630, 2005 U.S. App. LEXIS 5442 at

*6 (11th Cir. April 6, 2005). We thus reject Kangas’s contention that the Blakely

line of cases requires that prior convictions be admitted by the defendant or found

by a jury beyond a reasonable doubt.

      Nor can we find non-constitutional “statutory” Booker error in Kangas’s

sentence. Non-constitutional Booker error occurs where the district court

sentenced a defendant under 18 U.S.C. § 3553(b)(1) – the now-excised provision

which rendered the Sentencing Guidelines range binding on the district court.

United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). In this case,

Kangas was not sentenced within a guidelines range, rendered mandatory by §

3553(b)(1). Rather, he was sentenced under the minimum 120 month sentence

provided for in the criminal statute itself. 18 U.S.C. § 2252A(b)(2) (prescribing a

120 month minimum sentence for violators of 18 U.S.C. § 2252A(a)(5) with a

prior child pornography or child sex abuse conviction). Under these

circumstances, where even after the excise of § 3553(b)(1) Kangas would be

subject to the same 120-month minimum sentence, any non-constitutional Booker

error that could have affected the computation of his guidelines range was

harmless. See Shelton, 400 F.3d at 1333 n.10 (“We emphasize that the district

                                          4
court was, and still is, bound by the statutory minimums.”); see also, United States

v. Sharpley, 399 F.3d 123, 127 (2d. Cir. 2005) (where defendant’s sentence was

set to statutory minimum for child sex offenders, any non-constitutional Booker

error in computation of lower guidelines offense level was harmless, as defendant

could obtain no improvement in his sentence upon remand for discretionary

sentencing).

      While we thus find no reversible error in the district court’s 120-month

sentence, there appears to be an inconsistency between the charge to which

Kangas pled and was sentenced and the charge that appears in the judgment.

Kangas pled guilty to possession of child pornography, which violates 18 U.S.C. §

2252A(a)(5). However, the indictment and order of judgment erroneously

reference § 2252A(a)(2), which criminalizes the distribution or receipt of child

pornography. The entirety of the record, particularly the fact that Kangas was

sentenced under § 2252A(b)(2)’s 10 year statutory minimum, which applies only

to violations of § 2252A(a)(5), make clear that the order of judgment’s reference

to 18 U.S.C. § 2252A(a)(2) is erroneous and should have referenced 18 U.S.C. §

2252A(a)(5).

      Though neither of the parties raised this issue, we may raise the issue of

clerical errors in the judgment sua sponte and remand with instructions that the

                                         5
district court correct the errors. See United States v. Anderton, 136 F.3d 747, 751

(11th Cir. 1998) (remanding with directions to the district court to correct the

clerical errors where the statute cited in the judgment and commitment order was

incorrect). Although we affirm Kangas’s sentence as to the Booker issues raised

on appeal, we vacate and remand for the limited purpose of correcting this error.

See Anderton, 136 F.3d at 751.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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