                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                               No. 05-10469               ELEVENTH CIRCUIT
                           Non-Argument Calendar              August 30, 2005
                         ________________________          THOMAS K. KAHN
                                                                CLERK
                      D.C. Docket No. 04-00081-CR-WS

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

      versus

KENDRICK LAVON TAYLOR,

                                                       Defendant-Appellant.

                        __________________________

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

                               (August 30, 2005)

Before ANDERSON, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

      Kendrick LavonTaylor appeals his conviction and 35-month sentence, which

was imposed after he pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). On appeal, Taylor argues that: (1) his conviction

was unconstitutional, under the Commerce Clause, because § 922(g)(1) does not

regulate an activity with a sufficient nexus to interstate commerce; and (2) he was

sentenced in violation of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160

L. Ed. 2d 621 (2005), because the district court enhanced his sentence based upon

facts not charged in the indictment or admitted by him, pursuant to a mandatory

sentencing scheme.

      We review the constitutionality of statutes de novo. United States v. Scott, 263

F.3d 1270, 1271 (11th Cir. 2001). Taylor preserved his Booker error by objecting,

based on Blakely v. Washington, 542 U.S. ___, 124 S. Ct 2531, 159 L. Ed. 2d 403

(2004), at sentencing. See United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir.

2005) (holding that appellant properly preserved Booker claim by citing Blakely in

his written objections to the PSI and reminding the court at sentencing of his Blakely

objection). Accordingly, he is entitled to preserved error review, meaning that we

review his claim de novo, but will reverse only for harmful error. See United States

v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (citation omitted). “‘To find harmless

error, we must determine that the error did not affect the substantial rights of the

parties.’” Id. (quoting United States v. Hernandez, 160 F.3d 661, 670 (11th Cir.

1998)). “The burden is on the government to show that the error did not affect the

                                          2
defendant’s substantial rights.” Id. (citing United States v. Olano, 507 U.S. 725, 741,

113 S. Ct. 1770, 1781, 123 L. Ed. 2d 508 (1993)).

      Upon thorough review of the record, as well as careful consideration of the

parties’ briefs, we affirm Taylor’s conviction, but find Booker statutory, or non-

constitutional, error that the government cannot establish was harmless.           We

therefore vacate and remand his sentence for resentencing consistent with the

remedial holding of Booker.

      The relevant facts are straightforward. On April 20, 2004, Taylor was indicted

for one count of possession of a firearm by a convicted felon, in violation of §

922(g)(1). Without the benefit of a plea agreement, Taylor entered a plea of guilty

to the crime charged. During the plea colloquy, Taylor admitted, among other things,

that he had been in possession of a gun after being convicted of a felony and that the

gun had traveled in interstate commerce. He then proceeded to sentencing.

      According to the presentence investigation report (“PSI”), Taylor’s base

offense level was 14, pursuant to U.S.S.G. 2K2.1(a)(6). After a 2-point reduction for

acceptance of responsibility, his adjusted offense level was 12. With a criminal

history category of V, his Sentencing Guidelines range was 27 to 33 months’

imprisonment. After the PSI was prepared Taylor requested that he receive a 180-day

departure, pursuant to U.S.S.G. § 5G1.3, for time served on the state charge that was

                                          3
the basis of his federal offense. Taylor’s sentencing hearing was set for September

23, 2004, but he did not appear for that hearing. The hearing was rescheduled for

September 24, 2004, but Taylor again did not appear, and a warrant was issued for

his arrest.

       On January 11, 2005, Taylor appeared before the court for his sentencing

hearing, at which he renewed his request for a 180-day departure and objected to the

Probation Office’s recommendation that he not be given credit for acceptance of

responsibility due to his failure to appear at the previously set sentencing hearings.

Taylor also objected, under Blakely, to the Probation Office’s recommended two-

level enhancement for obstruction of justice, also based on his failure to appear at the

prior sentencing hearings. The district court noted that the sentencing hearing

originally had been set for some time in September, but Taylor failed to appear on the

scheduled date, and his counsel was unable to locate him. Taylor stated that he had

failed to appear because he wanted to spend more time with his children. The district

court replied that it previously had every intention of awarding Taylor a 2-level

reduction for acceptance of responsibility, but that his failure to appear was

inconsistent with acceptance, and therefore, the court would not award the reduction.

The district court also stated that a two-point enhancement for obstruction of justice

was appropriate. Thus, based on the recalculations made at the sentencing hearing,

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Taylor had a Guideline range of 41 to 51 months’ imprisonment. After granting

Taylor a 180-day downward departure for time served on his state charge, the court

imposed a 35-month sentence. This appeal followed.

      Pursuant to the Commerce Clause, as interpreted in United States v. Lopez, 514

U.S. 549, 558-59, 115 S. Ct. 1624, 1629-30, 131 L. Ed. 2d 626 (1995), Congress

permissibly may regulate (1) the use of the channels of interstate commerce; (2) the

instrumentalities of interstate commerce, or persons or things in interstate commerce;

and (3) activities with a “substantial relation to interstate commerce.” In Lopez, the

Supreme Court held that the Gun-Free School Zones Act, which made it a federal

offense knowingly to possess a firearm in a school zone, was an unconstitutional

exercise of Congressional authority because “[t]he act neither regulates a commercial

activity nor contains a requirement that the possession be connected in any way to

interstate commerce.” Id. at 551, 115 S. Ct. at 1626. The Court highlighted that the

Act contained “no express jurisdictional element which might limit its reach to a

discrete set of firearm possessions that additionally have an explicit connection with

or affect on interstate commerce.” Id. at 562, 115 S. Ct. at 1631; see also United

States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000) (holding

that enactment of the civil remedy provision of the Violence Against Women Act of




                                          5
1994, 42 U.S.C. § 13981, exceeded Congress’s power under the Commerce Clause;

noting that § 13981 contained no jurisdictional element).

      In United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996), we squarely

rejected the argument that, under Lopez, § 922(g)(1) exceeds Congress’s Commerce

Clause power.1 In finding the statute constitutional under the Commerce Clause, we

reasoned that, unlike the Gun-Free School Zones Act at issue in Lopez, the

felon-in-possession statute has an express jurisdictional element, which would ensure

that the firearm possession in question affects interstate commerce. McAllister, 77

F.3d at 389-90 n.4. On numerous occasions, we have held that McAllister has not

been overruled or called into question by subsequent Supreme Court decisions. See

United States v. Scott, 263 F.3d 1270, 1271, 1273-74 (11th Cir. 2001) (reaffirming

our holding that § 922(g) is constitutional under Congress’s Commerce Clause power,

and stating that “nothing in Morrison or Jones [ v. United States, 529 U.S. 848, 120

S. Ct. 1904, 146 L. Ed. 2d 902 (2000)] alters the reasoning upon which McAllister


      1
          Section 922(g)(1) makes it unlawful for any person:

                who has been convicted in any court of, a crime punishable by
                imprisonment for a term exceeding one year . . . to ship or transport
                in interstate or foreign commerce, or possess in or affecting
                commerce, any firearm or ammunition; or to receive any firearm or
                ammunition which has been shipped or transported in interstate or
                foreign commerce.

       18 U.S.C. 922(g)(1).

                                                 6
is moored.”); United States v. Dupree, 258 F.3d 1258, 1259 (11th Cir. 2001) (holding

that “Morrison does not change the holding in McAllister and that § 922(g) is a

constitutional exercise of Congress’s commerce power.”); see also United States v.

Ballinger, 395 F.3d 1218 (11th Cir.) (en banc) (rejecting facial and as-applied

challenges, based on the Commerce Clause, to 18 U.S.C. § 247, pursuant to the

“approach this Circuit has repeatedly taken to the nearly identical language found in

§ 922(g)”), pet. for cert. filed, No. 04-9627 (Apr. 7, 2005).

      Simply put, under our uniform line of controlling precedent, § 922(g) is a

constitutional exercise of Congress’s Commerce Clause power. Taylor’s admission,

at the plea colloquy, that he possessed a gun that had traveled in interstate commerce

was sufficient to demonstrate the required nexus to interstate commerce.

Accordingly, we affirm Taylor’s conviction.

      As for Taylor’s Booker claim, the Sixth Amendment right to trial by jury is

violated where, under a mandatory Guidelines system, a sentence is increased because

of an enhancement based on facts found by the judge that were neither admitted by

the defendant nor found by the jury. Booker, 543 U.S. ___, 125 S. Ct. at 749-56

(2005). The Booker constitutional error is the use of extra-verdict enhancements to

reach a Guidelines result that is binding on the sentencing judge. Mathenia, 409 F.3d

at 1291. The Booker non-constitutional, or statutory, error occurs when the district

                                          7
court sentences a defendant under a mandatory sentencing scheme, even in the

absence of a Sixth Amendment enhancement violation. Id. Because Taylor admitted

the facts underlying the enhancement for obstruction of justice, no constitutional

Booker error occurred when his sentence was enhanced based on those facts. See

United States v. Shelton, 400 F.3d 1325, 1329-30 (11th Cir. 2005) (holding that there

was no Sixth Amendment violation where judicial fact-finding of a drug quantity

greater than the amount alleged in the indictment did not go beyond the facts admitted

by the defendant).

      Although the district court did not engage in improper factfinding in imposing

sentence, it did commit Booker statutory error when it sentenced Taylor under a

mandatory scheme. Id. (holding that even without Booker constitutional error in the

district court’s application of the Guidelines, there could be non-constitutional error

where the court applied the Guidelines in a mandatory fashion). Booker statutory

errors are 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.” Mathenia, 409

F.3d at 1292 (citations omitted). “The non-constitutional harmless error standard is

not easy for the government to meet. It is as difficult for the government to meet that

standard as it is for a defendant to meet the third-prong prejudice standard for plain

error review.” Id.

                                           8
       Based on our careful review of the record, including the sentencing transcript,

we can find no indication of whether or not the district court would have sentenced

Taylor similarly under an advisory scheme. Moreover, Taylor was sentenced to the

low end of the Guidelines range. On this record, “[w]e simply do not know what the

sentencing court would have done had it understood the guidelines to be advisory

rather than mandatory, and had properly considered the factors in 18 U.S.C. §

3553(a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005). Thus, the

government has failed to carry its burden. See id. at 1271-72. Accordingly, we

vacate Taylor’s sentence and remand his case to the district court for resentencing

consistent with Booker.2

       AFFIRMED IN PART, VACATED AND REMANDED IN PART.




       2
          By vacating Taylor’s sentence and remanding for resentencing, we do not mean to imply
that on remand the district court must impose a lesser sentence. Rather, we merely hold that the
government has failed to meet its burden to show that the Booker statutory error of sentencing under
a mandatory Guidelines regime was harmless. We note that the district court correctly calculated
Taylor’s Guidelines range. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005)
(stating that 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 Guidelines”). Thus, consistent with Booker, on remand, the district court is
required to sentence Taylor under an advisory scheme and shall consider the Guidelines range of 41-
51 months’ imprisonment and “other statutory concerns as well, see [18 U.S.C.] § 3553(a)
(Supp.2004).” Booker, 125 S. Ct. at 757.


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