                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                  FILED
                                                          U.S. COURT OF APPEALS
                         ____________________________       ELEVENTH CIRCUIT
                                                                January 26, 2006
                                 No. 04-15228                THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                         ___________________________

                         D.C. Docket No. 03-20641-CR-AJ

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                       versus

SONIA I. ALVAREZ,
a. k. a. Sonia E. Alvarez,

                                                   Defendant-Appellant.

                             _________________________

                    Appeal from the United States District Court
                       for the Southern District of Florida
                         __________________________

                                 (January 26, 2006)

Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
        Defendant-Appellant Sonia I. Alvarez appeals the 30-month sentence

imposed upon her conviction, pursuant to a plea agreement, of conspiracy to

commit bank and mail fraud and commission of mail fraud. We vacate and

remand for resentencing.

        Defendant raises a single issue on appeal: whether the district court erred

under Booker v. United States, 125 S.Ct. 738 (2005) when it imposed a sentence

that included a two-level upward adjustment for use of sophisticated means and an

additional two-level upward adjustment for abuse of a position of trust, each

enhancement based on facts found by the sentencing court and not contained in the

plea agreement. Because Defendant’s constitutional claims were raised timely in

the district court, they are subject to preserved error review.1 We review a

preserved Booker (then Blakely) claim on appeal de novo, but we reverse only for

harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

        We see no constitutional Booker error. Defendant’s objection to the extra-

verdict enhancements was that the enhancements were applied based on facts not

found by a jury or contained in Defendant’s plea agreement. But Defendant never



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

                                                2
disputed the facts contained in the PSI and never took issue with the prosecutor’s

recital of facts during the plea colloquy. A defendant’s failure to dispute 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) (concluding

that sentence enhancement based on extra-verdict 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. United States v. Petho, 409 F.3d 1277, 1280 n.1 (11th Cir. 2005)

(“Because Petho admitted to the facts underlying these enhancements, there is no

Sixth Amendment error.”).

      Although no constitutional Booker error has been shown, 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




                                          3
absence of a Sixth Amendment enhancement violation.” Shelton, 400 F.3d at

1330-31.

      At sentencing, the district court commented that it was not known “what the

Supreme Court will ultimately do with Blakely,” and noted that it understood that

existing Eleventh Circuit precedent required that the sentencing guidelines be

applied. The district court stated that if the Supreme Court “throws out the

Guidelines, that issue is preserved, and I’m sure [Defendant] will be back here for

resentencing ... and I’ll certainly be happy to reconsider what sentence should be

imposed.” Because the district court sentenced Defendant under a mandatory

guidelines system, there was statutory Booker error.

      Two harmless error standards exist for review of Booker error. Mathenia,

409 F.3d at 1291-92. 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 of showing the absence of effect on the

                                          4
defendant’s substantial rights of the statutory error . 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)).

        In the light of the district court’s comments at sentencing, the Government

concedes that it can not meet the burden of proving that the mandatory application

of the guidelines was harmless. What sentence the district court would have

imposed had it considered the guidelines advisory is unknown and, on this record,

unknowable. Because was cannot say with fair assurance that the statutory

Booker error was harmless, we vacate Defendant’s sentence and remand for

resentencing consistent with Booker.2

        VACATED and REMANDED.




    2
      Defendant has abandoned on appeal any guideline calculation claim. We agree with the
Government’s contention that remand should be limited; the district court should not reopen the
calculations underlying the guidelines range. See United States v. Mesa, 247 F.3d 1165, 1171 n.6
(11th Cir. 2001) (issue not raised during initial appeal is abandoned and may not be advanced on
remand). The district court, however, is not bound to sentence within this guideline range. See
United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005) (Once the district court calculates
correctly the guideline range, it “may impose a more severe or more lenient sentence as long as the
sentence is reasonable, see Booker, 125 S.Ct. at 767.”).


                                                5
