                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                                 JULY 6, 2005
                                No. 04-15580                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                  D.C. Docket No. 04-00020-CR-FTM-29-DNF

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

      versus

NOEL SIMMION PENN,
a.k.a. Oscar Miller,
                                                   Defendant-Appellant.

                         __________________________

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

                                 (July 6, 2005)

Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

      Noel Simmion Penn appeals his 70-month sentence for illegal re-entry into

the United States by an aggravated felon, in violation of 8 U.S.C. § 1326(a),
(b)(2). Penn’s indictment stemmed from an undercover operation by the Charlotte

County Sheriff’s Office (“CCSO”), whereby an undercover deputy purchased

cocaine base from Penn’s residence. During the buy, the deputy recognized Penn

as an illegal alien who had previously been deported. The deputy informed the

Bureau of Immigration and Customs Enforcement (“ICE”) that Penn had re-

entered the United States. After ICE agents confirmed that Penn was a deported

alien who had illegally re-entered the United States, CCSO officers arrested Penn

and turned him over to the ICE agents. Penn subsequently pled guilty to illegal re-

entry by an aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2). On

appeal, he maintains that the district court erred, pursuant to United States v.

Booker, 543 U.S. __, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005), in sentencing him

under a mandatory guidelines system.

      In Blakely v. Washington, the Supreme Court held that, under the state of

Washington’s mandatory sentencing guidelines system, the imposition of a

sentencing enhancement based upon facts neither admitted by the defendant nor

found by the jury violated the defendant’s Sixth Amendment right to a jury trial.

Blakely, 542 U.S. __, 124 S. Ct. 2531, 2534-38, 159 L.Ed.2d 403 (2004). In

Booker, the Supreme Court extended this holding to the federal Sentencing

Guidelines. Booker, 543 U.S. at        , 125 S.Ct. at 760. Based on the Supreme

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Court’s holding, we have stated that there could be two Booker errors: (1) a Sixth

Amendment error – the error of imposing a sentencing enhancement based on

judicial findings that go beyond the facts admitted by the defendant or found by

the jury, and (2) a statutory error – the error of being sentenced under a mandatory

guidelines system. United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir.

2005).

      When, as here, a defendant raises, in the district court, an objection to the

mandatory nature of the guidelines, we review for harmless error. United States v.

Mathenia, No. 04-15250, slip op. at 2328 (11th Cir. May 23, 2005). A statutory

Booker 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. at 2328-2329 (citations omitted).

      In the case at bar, there was a statutory, Booker error, which the government

concedes, because the district court sentenced Penn under a mandatory guidelines

system. See id. at 1330-31. Moreover, the government has not proven, and

concedes that it may not be able to prove, that the district court’s error did not

affect, or had but a slight affect, on Penn’s sentence. When it sentenced Penn, the

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district court did not state that it would sentence Penn exactly the same if Blakely

applied to the federal Sentencing Guidelines. See Mathenia, slip op. at 2329-2330

(affirming a defendant’s sentence despite a Booker statutory violation because the

district court stated that it would impose the same sentence if the guidelines were

advisory). Accordingly, the error by the district court in sentencing Penn under a

mandatory guidelines system was not harmless and we vacate and remand for re-

sentencing.

      VACATE AND REMAND.




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