                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              May 5, 2005
                               No. 04-15849
                                                           THOMAS K. KAHN
                           Non-Argument Calendar               CLERK
                         ________________________

                       D. C. Docket No. 04-00045-CR-4

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

DIMAS PENALOZA RIOS,

                                                           Defendant-Appellant.


                         ________________________

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

                                (May 5, 2005)

Before BIRCH, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Dimas Penaloza Rios appeals his 77-month sentence for illegal reentry into
the United States after removal, in violation of 8 U.S.C. sections 1326(a) and

(b)(2). Rios challenges both the enhancements to his sentence based on his

previous convictions and the application of the United States Sentencing

Guidelines as mandatory. Although one of his objections fails, Rios’s other

objection requires that we vacate his sentence. Because Rios did not object to the

enhancements to his sentence in the district court, and he cannot show that the

application of the enhancements affected his substantial rights, we reject Rios’s

challenge to his sentence on Sixth Amendment grounds. We vacate Rios’s

sentence and remand to the district court for resentencing, however, because Rios

objected to the use of the sentencing guidelines, and the government cannot show

that the use of the guidelines as mandatory was harmless error.

                                I. BACKGROUND

      In July 2004, in accord with a plea agreement, Rios pleaded guilty to one

count of illegal reentry of a removed alien, in violation of 8 U.S.C. section

1326(b)(2). During the Rule 11 hearing, after the district court had accepted the

plea, a government witness, Scott McCormack, testified regarding Rios’s criminal

history. McCormack stated that Rios had two previous convictions in California,

two previous convictions in Georgia, and that Rios had been sentenced to sixteen

years’ imprisonment on one of the convictions. McCormack also stated that Rios



                                           2
was previously deported on June 4, 2001, and did not have authorization to reenter

the United States. When questioned, Rios, under oath, admitted the truth of

McCormack’s testimony.

      Rios was sentenced in accord with the sentencing guidelines. Under

guidelines section 2L1.2, Rios’s base offense level was 8. The offense level was

increased by 16 levels under guidelines section 2L1.2(b)(1)(A)(i) because Rios was

previously deported after sustaining a conviction for a drug trafficking offense for

which the sentence imposed exceeded thirteen months. Finally, the offense level

was reduced by three levels for acceptance of responsibility for a total offense level

of 21. Rios’s criminal history was set at 13, because of his numerous previous

convictions, he was on parole when he committed the instant offense, and the

offense was committed less than two years following Rios’s release from custody

for his California convictions. With a offense level of 21 and a criminal history

category of VI, the applicable guideline range was 77 to 99 months. The

maximum statutory sentence under 8 U.S.C. section 1326(b) was twenty years.

      Rios objected to the presentence investigation report on the ground that the

sentencing guidelines were unconstitutional. Rios did not object to the use of his

previous convictions to calculate his guideline range. Neither did Rios make any

additional argument at sentencing. The district court entered a sentence of 77



                                          3
months’ imprisonment.

                           II. STANDARD OF REVIEW

      To the extent Rios objected to the use of the sentencing guidelines as

unconstitutional in the district court, we review his sentence de novo. United

States v. Sanchez, 269 F.3d 1250, 1272 (11th Cir. 2002) (en banc). We will

reverse the district court only if any error was harmful. Id. Any argument not

raised in the district court, however, is reviewed only for plain error. United States

v. Kramer, 73 F.3d 1067, 1074 (11th Cir. 1996).

                                 III. DISCUSSION

       Under United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), there

are two kinds of sentencing errors; one is constitutional and the other is statutory.

“[T]he 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.” United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005). In

addition, “[a]s a result of Booker’s remedial holding, Booker error exists when the

district court misapplies the Guidelines by considering them as binding as opposed

to advisory.” U.S. v. Shelton, No. 04-12602, 2005 WL 435120, *5 (11th Cir. Feb

25, 2005). Rios challenges his sentence on both grounds, and we address each



                                           4
argument in turn.

      As to the alleged constitutional error, Rios’s challenge to the enhancements

to his sentence fails for several reasons. First, nothing in Booker applies to the use

of a previous conviction to enhance a sentence. On the contrary, the Supreme

Court in Booker reaffirmed its holding that “[a]ny 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.” Booker,

125 S. Ct. at 756 (emphasis added); Shelton, 2005 WL 435120, *3. Second, Rios

admitted his previous convictions at his plea hearing and did not object to the

factual statements in the presentence report. See Shelton, 2005 WL 435120, *3.

Third, Rios did not object to the calculation of the guideline range in the district

court nor has he presented any evidence to show that his substantial rights were

affected. See Rodriguez, 398 F.3d at 1301.

      Rios’s objection to his sentence on statutory error grounds, which he raised

in the district court, has merit. The district court erred when it sentenced Rios,

because it considered the Guidelines to be mandatory. Although we must

disregard this error if the error was harmless, an error is not harmless if it affects

the substantial rights of the parties. Fed. R. Crim. P. 52(a); United States v.



                                            5
Hernandez, 160 F.3d 661, 670 (11th Cir. 1998). The government bears the burden

of showing that the error did not affect the defendant’s substantial rights. See

United States v. Olano, 507 U.S. 725, 741, 113 S. Ct. 1770, 1781 (1993). The

government cannot meet its burden, because the record does not provide any

evidence to show what sentence the district court would have imposed if the

district court had considered the Guidelines to be advisory. The government

conceded in its response brief that this appeal should be remanded for resentencing

under advisory guidelines.

                                IV. CONCLUSION

      Because the calculation of the guideline range by the district court was not

plain error, we reject Rios’s challenge to his sentence on Sixth Amendment

grounds. We VACATE Rios’s sentence and REMAND to the district court for

resentencing, however, because the government cannot show that the use of the

guidelines as mandatory was harmless error.




                                          6
