                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              September 1, 2005
                              No. 04-14792                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D. C. Docket No. 04-00079-CR-T-26-EAJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

GABRIEL VASQUEZ-TORRES,
a.k.a. Gabriel Vasquez,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________
                            (September 1, 2005)


Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Gabriel Vasquez-Torres appeals his 57-month sentence for unlawful re-entry
into the United States by a previously deported convicted felon, in violation of 8

U.S.C. § 1326(a) and (b)(2). On appeal, Vasquez-Torres argues that the district

court erred under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005),

when it enhanced his sentence based on facts not charged in the indictment or

admitted by him. After review, we vacate Vasquez-Torres’s sentence and remand

for resentencing.

                                   I. BACKGROUND

       Vasquez-Torres pled guilty without a plea agreement to unlawfully re-

entering the United States after being deported for conviction of a felony offense,

in violation of 8 U.S.C. § 1326(a) and (b)(2).

A.     Plea Colloquy

       During the plea colloquy, the government set forth the following facts,

which Vasquez-Torres admitted as true. Vasquez-Torres is a citizen of Mexico.

On November 14, 1990, Vasquez-Torres was convicted in a state court in Texas of

the felony offense of possession of marijuana. On December 13, 1994, Vasquez-

Torres was convicted in United States District Court for the Eastern District of

North Carolina of conspiracy to import controlled substances.1 Vasquez-Torres

subsequently was deported to Mexico on August 29, 1997.


       1
       According to the Presentence Investigation Report (“PSI”), Vasquez-Torres was released
from custody on the federal drug importation conviction on August 28, 1997.

                                             2
       On January 27, 2004, Vasquez-Torres was arrested in the Middle District of

Florida for domestic battery and child abuse. Vasquez-Torres did not have

permission to be back in the United States.

B.     PSI and Sentencing

       The Presentence Investigation Report (“PSI”) recommended a base offense

level of 8, pursuant to U.S.S.G. § 2L1.2(a). The PSI increased the offense level by

16 levels because Vasquez-Torres previously had been deported in 1997 after a

drug conviction for which the sentence exceeded 13 months. U.S.S.G. §

2L1.2(b)(1)(A)(i). Indeed, in 1994, Vasquez-Torres was sentenced to 60 months’

imprisonment for conspiracy to import a controlled substance. The PSI also

recommended a three-level reduction for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1.

       In calculating Vasquez-Torres’s criminal history category, the PSI assessed

two points, pursuant to U.S.S.G. § 4A1.1(d), because, at the time of the instant

federal illegal re-entry offense, Vasquez-Torres was wanted on a probation

violation warrant from his prior state offense for marijuana possession.2

       2
        Under U.S.S.G. § 4A1.1(d), two points should be added to a defendant’s criminal history
category “if the defendant committed the instant offense while under any criminal justice sentence,
including probation, parole, supervised release, imprisonment, work release, or escape status.”
U.S.S.G. § 4A1.1(d).
       According to the commentary,
       A defendant who commits the instant offense while a violation warrant from a prior
       sentence is outstanding (e.g., a probation, parole, or supervised release violation

                                                3
       The PSI also assessed an additional criminal history point, pursuant to

U.S.S.G. § 4A1.1(e), because Vasquez-Torres illegally re-entered the United States

on or before May 10, 1999, which was less than two years after his August 28,

1997, release from federal custody on the 1994 drug importation conviction.3 With

a total offense level of 21 and a criminal history category of IV, Vasquez-Torres’s

Guidelines range was 57-71 months’ imprisonment.

       Vasquez-Torres objected to the PSI’s criminal history computation in light

of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2005), arguing that the

district court could not enhance his sentence based on the probation violation

warrant or the illegal re-entry date of May 10, 1999, because neither was proven to


       warrant) shall be deemed to be under a criminal justice sentence for the purposes of
       this provision if that sentence is otherwise countable, even if that sentence would
       have expired absent such warrant.
U.S.S.G. § 4A1.1(d) app. 4. Because Vasquez-Torres committed the instant illegal re-entry offense
while there was a probation violation warrant from a prior state sentence, Vasquez-Torres was
deemed to be under a criminal justice sentence for the purposes of the two-point increase under
U.S.S.G. § 4A1.1(d).
       3
         Section 4A1.1(e) provides:
        Add 2 points if the defendant committed the instant offense less than two years after
        release from imprisonment on a sentence counted under (a) or (b) or while in
        imprisonment or escape status on such a sentence. If 2 points are added for item (d),
        add only 1 point.
U.S.S.G. § 4A1.1(e).
        Section 4A1.1(a) provides that three points should be added “for each prior sentence of
imprisonment exceeding one year and one month.” U.S.S.G. § 4A1.1(a). Section 4A1.1(b) provides
that two points should be added “for each prior sentence of imprisonment of at least sixty days not
counted in (a).” U.S.S.G. § 4A1.1(b).
        Because Vasquez-Torres’s 1994 drug importation conviction carried a term of 60 months’
imprisonment, it qualified as a prior sentence of imprisonment exceeding one year and one month
under § 4A1.1(a), and thus qualified for the one point addition in § 4A1.1(e).

                                                4
a jury. While Vasquez-Torres objected on Sixth Amendment grounds, he did not

object to the factual accuracy of the statements in the PSI.

      During the sentencing hearing, Vasquez-Torres renewed his Blakely

objection. The district court overruled the objection, determining that Eleventh

Circuit precedent established that Blakely did not apply to the Sentencing

Guidelines.

      Vasquez-Torres then stated that he did not have any other objections to the

PSI’s factual statements. However, Vasquez-Torres moved for a downward

departure based upon cultural assimilation, pursuant to U.S.S.G. § 5K2.0. The

district court overruled Vasquez-Torres’s motion, stating: (1) “the more we keep

him [in federal prison], the more we’re preventing him from committing more

crimes, especially returning to the United States”; and (2) “I might be more

inclined to favorably receive this motion if not for the fact that he has two prior

drug convictions and they’re not for personal use.”

      The district court then adopted the PSI’s factual findings and sentenced

Vasquez-Torres to 57 months’ imprisonment.

                                  II. DISCUSSION

      On appeal, Vasquez-Torres argues that the district court erred under Blakely,

now Booker, when it increased his criminal history score two points based on the



                                           5
probation violation warrant for the state offense and one point based on the illegal

re-entry date of May 10, 1999, being within two years of his release from custody

on August 28, 1997, on the federal drug importation conviction.

      Because Vasquez-Torres timely raised a Blakely objection in the district

court, we review his Blakely, now Booker, claim de novo. United States v. Paz,

405 F.3d 946, 948 (11th Cir. 2005) (citation omitted).

      In Booker, the Supreme Court held that Blakely applied to the Sentencing

Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert.

denied, 125 S. Ct. 2935 (2005). “Under Booker, there are two kinds of sentencing

errors: one is constitutional and the other is statutory.” United States v. Dacus, 408

F.3d 686, 688 (11th Cir. 2005). “[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.” Rodriguez, 398 F.3d at 1298

(emphasis omitted). The statutory error occurs when the district court sentences a

defendant “under a mandatory Guidelines scheme, even in the absence of a Sixth

Amendment enhancement violation.” United States v. Shelton, 400 F.3d 1325,

1330-31 (11th Cir. 2005).

      In this case, we conclude that the district court did not violate Vasquez-



                                          6
Torres’s Sixth Amendment rights. Although Vasquez-Torres did object to the

increase in his criminal history points based on the probation violation warrant and

based on the illegal re-entry date of May 10, 1999, Vasquez-Torres objected only

on Blakely constitutional grounds. Vasquez-Torres did not object to the factual

statements in the PSI, which outlined the existence of his probation violation

warrant, his release from custody on August 28, 1997, on the federal drug

importation conviction, and his illegal re-entry date of May 10, 1999. Thus, he is

deemed to have admitted the facts regarding those matters. See United States v.

Burge, 407 F.3d 1183, 1191 (11th Cir. 2005) (“Burge waived his objections to the

factual statements about his relevant conduct in the presentence report and,

therefore, admitted the facts in that report.”); United States v. Shelton, 400 F.3d

1325, 1330 (11th Cir. 2005) (concluding that sentence enhancement based on drug

quantity did not violate Booker where defendant did not dispute the facts in the

PSI).4 Accordingly, the district court did not violate Vasquez-Torres’s Sixth

Amendment rights by increasing his sentence based on facts that he did not admit.

       Although there is no Sixth Amendment violation in this case, the district

court committed statutory Booker error in sentencing Vasquez-Torres under a



       4
         With respect to the illegal re-entry date, Vasquez-Torres further admitted during the course
of filing and arguing his motion for a downward departure that he returned to the United States
within two years of being deported in August 1997.

                                                 7
mandatory Guidelines regime. Thus, we must determine whether the statutory

error in Vasquez-Torres’s sentencing is harmless. See Paz, 405 F.3d at 948.

      “A non-constitutional 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.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005)

(internal quotation marks, brackets, ellipses, and citation omitted). The burden is

on the government to show that the error was harmless and the standard “is not

easy for the government to meet.” Id.

      We conclude that the government has failed to meet its burden as to

Vasquez-Torres’s sentence. There is no evidence or other indication in the record

suggesting what effect, if any, changing from a mandatory to an advisory approach

would have had on the district court’s sentencing decision. We recognize that

under a mandatory Guidelines regime, the district court denied Vasquez-Torres’s

motion for a downward departure and stated that Vasquez-Torres should remain in

prison. However, “[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.



                                           8
Davis, 407 F.3d 1269, 1271 (11th Cir. 2005).

       Thus, we vacate Vasquez-Torres’s sentence and remand his case to the

district court for resentencing. We note that the district court correctly calculated

Vasquez-Torres’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”). On remand, the district court is required to sentence Vasquez-Torres

under an advisory Guidelines regime, and shall consider the Guidelines range of

57-71 months’ imprisonment and “other statutory concerns as well, see [18 U.S.C.]

§ 3553(a) (Supp. 2004).” Booker, 125 S. Ct. at 757.5

       VACATED AND REMANDED.




       5
        We do not mean to suggest by our holding that the district court must impose any particular
sentence on remand. Rather, we merely hold that the government did not meet its burden of
showing that the Booker statutory error was harmless. We also do not attempt to decide now
whether a particular sentence might be reasonable in this case.


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