                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           September 28, 2005
                              No. 04-14918
                                                          THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                     D. C. Docket No. 02-20851-CR-AJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

HENSEL JOSEPH,

                                                          Defendant-Appellant.


                        ________________________

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

                           (September 28, 2005)

Before BIRCH, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     Hensel Joseph appeals his sentences of 151 months imprisonment, imposed
following his guilty plea for bank robbery, in violation of 18 U.S.C. § 2113(a).

Because Joseph preserved his Booker challenge, the government must show

harmless error in the district court’s imposition of sentence under a mandatory

guidelines scheme. Here, the record does not establish that the error was harmless,

and, therefore, we VACATE and REMAND for sentencing.

                                  I. BACKGROUND

         Joseph was charged by superseding indictment with four counts of bank

robbery by threat or intimidation, in violation of 18 U.S.C. § 2113(a). He agreed

to plead guilty without a written plea agreement, in exchange for which the

government agreed to recommend sentencing at the low end of the guidelines

range.

         At the change-of-plea hearing, the court noted that Joseph had undergone

psychiatric evaluation and was found to be competent. The government proffered

that Joseph robbed two Bank of America institutions and two Washington Mutual

institutions by handing the tellers threatening notes. Joseph agreed that the factual

proffer was correct, and he entered his guilty plea.

         The probation officer prepared a presentence investigation report (“PSI”),

noting that the four robberies could not be grouped together because they

constituted separate and distinct harms. Calculating each group individually, with



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a group representing each robbery, the probation officer assigned the first Bank of

America robbery a base offense level of 20 under U.S.S.G. § 2B3.1(a), with a 2-

level increase for taking property of a financial institution, a 2-level increase for

intimidation under U.S.S.G. § 2B3.1(b)(2)(F) because Joseph told the teller he had

a gun, and a 1-level increase for amount of loss under U.S.S.G. § 2B3.1(b)(7)(B),

resulting in an adjusted offense level of 25 for Group 1. The second and third

groups involved the Washington Mutual robberies, each with a base offense level

of 20 and a 2-level increase for taking the property of a financial institution, and a

3-level increase for gesturing that he had a firearm, U.S.S.G. § 2B3.1(b)(2)(E),

resulting in an adjusted offense level of 25 for Groups 2 and 3. Finally, the

remaining Bank of America robbery was calculated with a base offense level of 20,

and a 2-level increase for taking the property of a financial institution, and a 2-

level increase for threat of death, U.S.S.G. § 2B3.1(b)(2)(F), resulting in an

adjusted offense level of 24 for Group 4.

      The probation officer then calculated the multiple count adjustment,

assigning one unit to each group, for a total of four units. Those four units were

added to the greater adjusted offense level of 25, resulting in a combined offense

level of 29. Joseph received an enhancement as a career offender under U.S.S.G.

§ 4B1.1, bringing his offense level to 32, which was reduced by 3-levels for



                                            3
acceptance of responsibility, resulting in a total adjusted offense level of 29. The

probation officer listed Joseph’s lengthy criminal history, totaling sixteen points,

resulting in a criminal history category VI due to the number of points and

Joseph’s status as a career offender. With an adjusted offense level of 29 and a

criminal history category VI, Joseph’s guidelines range was 151 to 188 months

imprisonment.

      Joseph objected to the PSI, arguing that Blakely1 rendered the guidelines

unconstitutional and that enhancements for use of a firearm and threats of death

were improper. He further alleged that he should not have qualified as a career

offender. Finally, he moved for a downward departure based on diminished

capacity.

      At sentencing, Joseph renewed his Blakely objection and asserted that his

sentence could not be enhanced based on prior convictions in light of Shepard v.

United States, 544 U.S.      ,   , 125 S. Ct. 1254(2005). The court overruled the

objections, concluding that Blakely had not invalidated the federal sentencing

guidelines and that the court was bound by Almendarez-Torres v. United States,

523 U.S. 224, 118 S.Ct. 1219 (1998). The court granted the government’s motion

for a one-level reduction for acceptance of responsibility. After considering



      1
          Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004).

                                               4
Joseph’s motion for a downward departure, the court stated that it understood it

had the discretion to depart, but that it declined to do so under the facts of the case.

Although the court noted Joseph’s mental condition, the court determined that his

claim that he committed the offenses so he could receive medical treatment was

unconvincing in light of the fact that he committed four robberies. Additionally,

the court considered Joseph’s lengthy criminal history and found that a sentence

was necessary both to punish Joseph and for deterrence. The court then sentenced

Joseph to 151 months imprisonment on each count to be served concurrently, 3

years supervised release each count to be served concurrently, and order him to pay

restitution in the amount of $20,528.92. Joseph now appeals.

                                   II. DISCUSSION

      In United States v. Booker, 534 U.S. ___, 125 S. Ct. 738 (2005),2 the

Supreme Court held that Blakely applied to the federal sentencing guidelines and

that the Sixth Amendment required that any fact that increased a defendant’s

sentence beyond the maximum sentence authorized by the facts established by a

plea or a jury verdict must be admitted by the defendant or proven to a jury beyond

a reasonable doubt. Id. at    , 125 S. Ct. 755-56. We have explained that a Booker

error also results from the district court’s use of a mandatory guidelines scheme,



      2
          We now review Blakley arguments under Booker.

                                            5
even in the absence of any constitutional error. United States v. Shelton, 400 F.3d

1325, 1330-31 (11th Cir. 2005).

       Because Joseph preserved his Booker challenge in the district court, we

review the sentences de novo, but will reverse only if the error was not harmless.

United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam). The burden

is on the government to show that the error was harmless and there are two

standards for the harmless error test. To show that a constitutional error was not

harmless, the government must demonstrate that the error did not affect the

defendant’s substantial rights.3 To show statutory harmless error, the government

is held to a less demanding standard, but must show that, viewing the proceedings

in their entirety, the error had no effect or a very slight effect on the sentence.

United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005) (per curiam).

       Here, there was no constitutional error.4 An enhancement based on a prior

conviction, even if not admitted by the defendant, does not represent a

constitutional Booker error. United States v. Orduno-Mireles, 405 F.3d 960, 962-

63 (11th Cir. 2005), petition for cert. filed, (U.S. Jul. 1, 2005) (No. 05-5141);



       3
          In other words, where it is clear “beyond a reasonable doubt, that the error did not
contribute to the defendant’s ultimate sentence.” Mathenia, 409 F.3d at 1291 (citation omitted).
       4
         Joseph does not argue on appeal that there was constitutional error in his sentences.
Therefore, he has abandoned that issue. Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir.
1998).

                                               6
United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005) (per

curiam). The Supreme Court’s decision in Shepard does not alter this conclusion.

United States v. Gallegos-Aguero, 409 F.3d 1274, 1276-77 (11th Cir. 2005) (per

curiam) ; Camacho-Ibarquen, 410 F.3d at 1316 n.3.

       Additionally, although Joseph received enhancements based on his death

threats and gestures that he carried a firearm, he admitted that he threatened the

bank tellers by handing them notes and there was no constitutional Booker error.

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

       The government correctly concedes that there was statutory error in the

imposition of the guidelines as mandatory, but it contends that the error was

harmless.5 We disagree.

       Where it is unclear whether the court would have imposed the same sentence

but for the mandatory guidelines, the government cannot show that the error was

harmless. United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir. 2005) (per

curiam). A sentence at the low end of the guidelines range, without more, does not

establish that the error was harmless. See United States v. Fields, 408 F.3d 1356,


       5
          Generally, we have concluded that the error was harmless when the district court has
indicated that it would impose the same sentence under an advisory guidelines scheme. Mathenia,
409 F.3d at 1292-93; United States v. Petho, 409 F.3d 1277, 1280 (11th Cir. 2005) (per curiam);
United States v. Robles, 408 F.3d 1324, 1327 (11th Cir. 2005) (per curiam).



                                              7
1361 (11th Cir. 2005) (concluding, under plain error review, that a sentence at the

low end of the guidelines was not sufficient to show that the mandatory application

of the guidelines affected the defendant’s substantial rights).

      Here, the court did not say that it would impose the same sentence if the

guidelines were advisory, and it is merely speculation what sentence the court

would have imposed. See Davis, 407 F.3d at 1271 (rejecting government’s

argument that Booker error was harmless when the district court exercised its

discretion and granted a downward departure because, although the court had

discretion in deciding whether to depart from the guidelines and the extent of that

departure, it did not have the discretion to consider other factors). Although the

district court sentenced Joseph at the low end of the guidelines range and it

indicated the need to punish Joseph and deter future criminal conduct, there is

nothing in the record to indicate that the court would have imposed the same

sentence had it known the guidelines were merely advisory, and these statements

are insufficient for the government to meet its burden considering that the burden

is not easy for the government to meet. Mathenia, 409 F.3d at 1292 (explaining

that the non-constitutional error test was “as difficult for the government to

meet . . . as it is for a defendant to meet the third-prong prejudice standard for plain

error review); see also United States v. Garcia, 405 F.3d 1260, 1275-76 (11th Cir.



                                           8
2005)); Paz, 405 F.3d at 948-49.

      Additionally, the court’s denial of a downward departure is not dispositive

because the court determined that Joseph had not shown that he was entitled to a

departure. Although the court had discretion to depart, it did not have discretion to

determine what bases were appropriate for a departure. Thus, we do not know

what the court would have done under an advisory guidelines scheme.

                                III. CONCLUSION

      Therefore, because the government cannot meet its burden to show harmless

error, we VACATE and REMAND for resentencing under an advisory guidelines

scheme.




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