                                                                   [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT

                       -------------------------------------------           FILED
                                    No. 04-16011                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                              Non-Argument Calendar                     December 21, 2005
                      -------------------------------------------- THOMAS K. KAHN
                                                                           CLERK
               D.C. Docket No. 01-00011-CR-FTM-29-DNF


UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                        versus

THOMAS A. ANTHONY,
a.k.a. Thomas A. Antony

                                                       Defendant-Appellant.


            ----------------------------------------------------------------
                 Appeal from the United States District Court
                       for the Middle District of Florida
            ----------------------------------------------------------------
                               (December 21, 2005)


Before EDMONDSON, Chief Judge, HULL and WILSON , Circuit Judges.


PER CURIAM:
        Defendant-Appellant Thomas A. Anthony appeals the 188-month sentence

imposed upon his conviction for (i) conspiracy to import a detectable quantity of

MDMA, and (ii) the importation of a detectable quantity of MDMA, in violation

of 21 U.S.C. §§ 952(a), 960(b)(3), 963, and 851. Defendant contends that the

district court’s application of the federal sentencing guidelines in fashioning his

sentence constituted a violation of his constitutional rights under Booker v. United

States, 125 S.Ct. 738 (2005).1 Defendant’s constitutional claims were raised

timely in the district court and, as such, preserved for our review. We vacate and

remand for resentencing.

        Defendant argued at sentencing and argues again on appeal that his

constitutional rights were violated when the sentencing court (i) enhanced his

sentence under 21 U.S.C. § 851 based on prior convictions; (ii) held him

responsible for 1004.3 grams of MDMA when the indictment referenced only a

detectable amount; and (iii) applied the career offender provisions of U.S.S.G. §

4B1.1 based on two prior felony convictions that were not admitted by him,

charged in the indictment or found by a jury. Defendant also argues that the



    1
      Booker was decided by the Supreme Court after Defendant was sentenced. At sentencing,
Defendant raised his constitutional claims based on Blakely v. Washington, 124 S.Ct. 2531 (2004).
Because the Booker decision applies to all cases then pending on direct review, we apply Booker to
this appeal. Booker, 125 S.Ct. at 769.

                                                2
sentencing judge -- who did depart downward horizontally -- erred when he

refused his request to depart downward vertically; Defendant maintains that his

sentence is unreasonable.

      We see no constitutional Booker error. About the sentencing court’s career

offender and 21 U.S.C. § 851 enhancements based on prior convictions, we have

decided post-Booker that a defendant’s Sixth Amendment rights are “not

implicated when a defendant’s sentence is enhanced based on a prior conviction.”

United States v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir.), cert. denied,

123 S.Ct. 223 (2005). As we noted in Orduno-Mireles, the rationale for excepting

prior convictions from restraints on judicial factfinding is clear: “‘a prior

conviction must itself have been established through procedures satisfying the fair

notice, reasonable doubt, and jury trial guarantees.’” Id. at 962, (quoting Jones v.

United States, 119 S.Ct. 1215, 1227 (1999)).

      Defendant’s argument that his constitutional rights were violated when he

was sentenced based on a quantity of MDMA that was not alleged in the

indictment also is without merit. Defendant failed to object to the facts concerning

drug quantity set out in the PSI. A defendant’s failure to dispute drug-quantity

facts contained in the PSI operates as an admission of those facts for Booker

purposes. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005)

                                           3
(concluding that sentence enhancement based on drug quantity not violative of

Booker where defendant failed to dispute facts in the PSI). Sentencing

enhancement based on admitted facts states no Sixth Amendment violation under

Booker. Booker, 125 S.Ct. at 756 (reaffirming that facts used to enhance a

sentence, other than a prior conviction, must be proved to a jury beyond a

reasonable doubt or admitted by the defendant); Shelton, 400 F.3d at 1330.

      Although we conclude that the sentencing court committed no constitutional

Booker error, two kinds of sentencing error may be claimed under Booker:

constitutional and statutory. See, e.g., United States v. Mathenia, 409 F.3d 1289,

1291 (11th Cir. 2005). “[C]onstitutional error is the use of extra-verdict

enhancements to reach a guidelines result that is binding on the sentencing judge.”

Shelton, 400 F.3d at 1331 (quoting United States v. Rodriguez, 398 F.3d 1291,

1301 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005)). Statutory Booker error

occurs when the district court misapplies the guidelines by considering them as

binding “even in the absence of a Sixth Amendment enhancement violation.”

Shelton, 400 F.3d at 1330-31.

      We apply preserved error review to a statutory Booker claim if defendant

preserved a constitutional claim by “citation to Apprendi or to other cases in that

line of cases.” United States v. Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005).

                                          4
And two harmless error standards exist for review of Booker error. Mathenia,409

F.3d at 1291-92 (11th Cir. 2005). Constitutional error requires reversal unless “the

government can show, beyond a reasonable doubt, that the error did not contribute

to the defendant’s ultimate sentence.” Id. at 1291. Statutory Booker error --

unlike constitutional Booker error -- requires reversal “only if [the error] resulted

in actual prejudice because it had substantial and injurious effect or influence in

determining the [result].” United States v. Gallegos-Aguero, 409 F.3d 1274, 1277

(11th Cir. 2005), quoting United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir.

1999). The government bears the burden to show the absence of effect of the

statutory error on the defendant’s substantial rights. Mathenia, 409 F.3d at 1292.

A sentence is due to be affirmed if it can be said “‘with fair assurance ... that the

[sentence] was not substantially swayed by the error.’” Id. (quoting United States

v. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir. 2004), cert. denied., 125 S.Ct.

2951 (2005)).

      The Government concedes that it can not meet the burden of proving that

the sentencing court’s application of the guidelines as mandatory was harmless.

At sentencing, the court noted that Defendant’s sentence was about five times

greater than the sentence imposed on his co-defendant. The sentencing judge also

queried the government asking “[d]on’t you find this an exceptionally harsh

                                           5
sentence that the Court has to impose?” We cannot say with fair assurance that

Defendant’s sentence was not substantially impacted by the statutory Booker error.

What sentence the district court would have imposed had it considered the

guidelines advisory is impossible to tell. Accordingly, we vacate Defendant’s

sentence and remand for resentencing consistent with Booker.2

         REVERSED and REMANDED.




  2
      Because we remand for resentencing, we do not address Anthony’s other sentencing arguments.

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