                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                       September 30, 2005
                                     No. 04-14589
                                                                        THOMAS K. KAHN
                               ________________________                     CLERK

                         D. C. Docket No. 04-00016-CR-5-MCR

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee-
                                                            Cross-Appellant,

                                            versus

CHAD CHRISTOPHER PYNE,


                                                            Defendant-Appellant-
                                                            Cross-Appellee.


                                _______________________

                      Appeals from the United States District Court
                          for the Northern District of Florida
                            _________________________

                                   (September 30, 2005)

Before BIRCH, HULL and BOWMAN *, Circuit Judges.

       *
        Honorable Pasco M. Bowman, II, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
PER CURIAM:

       Chad Christopher Pyne appeals his 200-month sentence for conspiracy to

manufacture, distribute, and possess with intent to distribute more than 50 grams of

methamphetamine and more than 500 grams of a mixture and substance containing

methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(viii) and 846, and his

concurrent 120-month sentence for possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Relying on United States v.

Booker, 543 U.S.    , 125 S. Ct. 738 (2005), Pyne argues that the district court erred

when it sentenced him under a mandatory Sentencing Guidelines scheme. The

government cross-appeals the district court’s grant of a downward departure under

the Guidelines and its refusal to sentence Pyne as a career offender. After review,

we vacate Pyne’s sentences and remand for resentencing.

                                I. BACKGROUND

A. Plea Colloquy

      Pyne pled guilty to the above drug conspiracy and firearm charges. During

the plea colloquy, the government filed a statement of facts, which Pyne admitted as

true. In that statement, the government explained that the Bay County, Florida,

Sheriff’s Office executed a state search warrant for the premises of Kim Brown at

2606 Beech Street, Panama City Beach, Florida, on November 19, 2003. During



                                          2
the execution of the warrant, the agents discovered chemicals and laboratory

instruments in Brown’s garage. Brown advised the agents that the items belonged

to her boyfriend, Pyne. When Pyne arrived at the premises during the search, his

person and vehicle were searched. The agents discovered: (1) approximately one

gram of methamphetamine inside one of his pockets; (2) approximately1100 grams

of methamphetamine oil in a backpack on the back seat of his vehicle; and (3) a

Bryco Arms .380 pistol in a black case in the hatchback of his vehicle.

      After Pyne was advised of his rights, he admitted to operating another

laboratory at his residence, 8315 Gulf Pines Drive, Panama City Beach, Florida, and

consented to its search. At his residence, the agents found approximately 98

containers of liquids, more than two grams of methamphetamine, and various

chemicals and instruments used in the manufacture of methamphetamine. The

government’s statement of facts cited taped statements in which Pyne admitted that

he: (1) had cooked approximately ten grams of methamphetamine almost every day

at his residence for about a month and at another location for about four months; (2)

owned the laboratories found both on Beech Street and on Gulf Pines Drive and the

methamphetamine oil found in his vehicle; and (3) had obtained the .380 pistol

about four months earlier. The statement of facts also indicated that Pyne had a

prior felony state conviction for an attempted home invasion and that the pistol had



                                          3
been manufactured outside Florida.

      During the plea hearing, Pyne admitted that he had “bought the chemicals to

make the drug[,] . . . made the drug and . . . sold it.” He also admitted that he was

aware that the pistol was “in the back of [his] car” and that he had a previous felony

conviction. Pyne acknowledged that he understood that the Sentencing Guidelines

applied and “that the district court w[ould] make the final determination of facts as

to any sentencing issue.” The district court then accepted Pyne’s guilty plea.

B. Presentence Investigation and Sentencing

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

level of 33.1 The PSI also noted that the career offender provision, U.S.S.G.

§4B1.1, applied because Pyne had two previous, unrelated felony convictions

involving crimes of violence, specifically attempted home invasions. Career

offender status increased Pyne’s offense level from 33 to 37 and his criminal history

category from IV to VI. See U.S.S.G. §4B1.1(b) . The PSI also recommended a

three-point offense level reduction for acceptance of responsibility. See U.S.S.G.

§3E1.1. With a total offense level of 34 and a criminal history category of VI,


       1
        The relevant Guidelines are those in effect at the time of Pyne’s sentencing hearing, unless
a more lenient punishment would result under the Guidelines effective on the date of Pyne’s
offenses. 18 U.S.C. 3553(a)(4)(A); United States v. Wilson, 993 F.2d 214, 216 (11th Cir. 1993).
The PSI does not mention which Guidelines version was used; however, because Pyne was
sentenced on August 19, 2004, he should have been sentenced under the 2003 Guidelines. All
Guidelines citations herein are to the 2003 Guidelines.

                                                4
Pyne’s Guidelines range was 262 to 327 months’ imprisonment. Pyne filed no

objections to the PSI but moved for a finding that the Guidelines were

unconstitutional, based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531

(2004), and seeking to be sentenced without regard to the Guidelines.

      At sentencing, the district court overruled Pyne’s Blakely objection and

found that the attempted home invasions were related, but that the career offender

provision still applied because the second offense involved a crime of violence.

The district court then effectively granted a downward departure from criminal

history category level VI to category IV, finding Pyne’s criminal history was

overstated, as follows:

      Despite my finding of a career offender status in Mr. Pyne’s case, I
      find that the sentence range of 262 to 327 months overrepresents Mr.
      Pyne’s criminal history. . . . Mr. Pyne has several incidents of criminal
      history, but they do not rise to the level in my opinion to support a
      sentence in that guideline range. We have stolen property less than
      $100, disorderly conduct, misdemeanor, first one was a misdemeanor,
      attempted home invasion, and both of the attempted home invasions. . .
      involved Mr. Pyne entering into a residence that was owned by some
      family friend or someone that he was close to and knew and that no
      one was home during either incident. . . . And the first home invasion,
      he took $255 and a . . . bicycle, and the second he took $85 and a
      backpack. I can’t find that this rises to the level to support a career
      offender sentence. . . .
             And I can’t, in good conscience, sentence someone to even 262
      months with that criminal history. So I am going to depart downward
      from the guideline range in this case, and I do so for those reasons.
      However, I am guided in the sentence that I am going to impose by the
      offense level and criminal history category that would apply if Mr.

                                          5
      Pyne was not found to be a career offender and that would be an
      offense level of 33 with a criminal history category of four, sentencing
      range of 188 to 235 months.

Although the government objected to the grant of a downward departure, the district

court responded that it was “floored” that the attempted home invasion would

qualify as a crime of violence for purposes of Pyne’s criminal history and, when

considering that crime and Pyne’s “other criminal history, which consists of nothing

but misdemeanors,” the court could not “in good conscience sentence this man to

262 months, and [was] not going to do so.”

      The district court sentenced Pyne to concurrent sentences of 200 months’

imprisonment for his drug conspiracy offense and 120 months’ imprisonment for

his firearms offense. The district court noted that it had “carefully considered the

factors set out in 18 U.S.C. [§] 3553[(a)], including the applicable guidelines and

policy statements issued by the Sentencing Commission.” The district court stated

that the imposed sentences would sufficiently punish Pyne for his “criminal conduct

while also serving as a general and specific deterrent to others who might engage in

similar-type conduct.”

      Pyne and the government appealed. On appeal, Pyne requests that we

remand for resentencing, arguing that the district court erred by relying on the




                                           6
Sentencing Guidelines because they were rendered unconstitutional by Booker.2

The government argues that any Booker error was harmless, but maintains that the

district court erred by refusing to sentence Pyne as a career offender and by

granting the downward departure from criminal history category VI to category IV.

                             II. STANDARD OF REVIEW

         Because Pyne timely raised his Blakely objection in district court, we review

his Booker challenge to his sentence de novo, reversing if the government fails to

show that any error was harmless. See United States v. Paz, 405 F.3d 946, 948

(11th Cir. 2005).

         When reviewing a downward departure under the Sentencing Guidelines, we

review factual findings for clear error and the application of the Guidelines to those

facts de novo. United States v. Kapelushnik, 306 F.3d 1090, 1093 (11th Cir. 2002).

If there is a legal basis for the downward departure under the Guidelines, we

generally do not review the district court’s exercise of discretion in determining the

extent of the departure. United States v. Head, 178 F.3d 1205, 1206 n.3 (11th Cir.

1999).

                                     III. DISCUSSION


         2
        In Booker, the Supreme Court held that Blakely applies to the United States Sentencing
Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert. denied, 125 S. Ct.
2935 (2005). Although Pyne initially argued that the district court erred in light of Blakely, he
supplemented his argument citing Booker.

                                                7
A. Booker Error

       “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) (per curiam). The constitutional error occurs “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, 1298 (11th Cir.),

cert. denied, 125 S. Ct. 2935 (2005) (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).

      Pyne concedes that there has been no constitutional error in this case, but

argues that the district court committed statutory Booker error warranting

resentencing. The government agrees both that there has been no constitutional

error and that statutory Booker error did occur. Thus, the only Booker issue is

whether the government carried its burden to show that the Booker error was

harmless. Paz, 405 F.3d at 948.

      A Booker statutory error is harmless only “if, viewing the proceedings in

their entirety, a court determines that the error did not affect the sentence, or had but



                                            8
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)

(per curiam) (quotation marks, citations and punctuation omitted). Here, the district

court expressed great concern about the Guidelines’ mandatory requirement that it

sentence Pyne with the range of 262-327 months. In fact, the district court

fashioned a unique downward departure -- one not authorized by the Guidelines --

in an effort to circumvent the mandatory Guidelines range of 262-327 months. It is

abundantly clear from the sentencing record that the district court would have

considered another sentence but for the mandatory nature of the Guidelines. Thus,

the government has not shown that the Booker error was harmless, and we therefore

vacate Pyne’s sentence and remand for resentencing.

B. Guidelines Calculations on Remand

      Following Booker, district courts, while not bound by the Sentencing

Guidelines, must continue to consult the provisions of the Sentencing Guidelines

and consider them in sentencing. United States v. Crawford, 407 F.3d 1174, 1178

(11th Cir. 2005); United States v. Jordi, 418 F.3d 1212, 1215 (11th Cir. 2005).

“This consultation requirement, at a minimum, obliges the district court to calculate

correctly the sentencing range prescribed by the Guidelines.” Crawford, 407 F.3d



                                           9
at 1178. Further, “[a] misinterpretation of the Guidelines by a district court

effectively means that the district court has not properly consulted the Guidelines.”

Id. (quotation marks, citations and punctuation omitted). “[A]pplication of the

guidelines is not complete until the departures, if any, that are warranted are

appropriately considered. . . .If the district court failed in [correctly applying the law

in determining the applicability of the departure], it by necessity failed to properly

consider the guidelines.” Jordi, 418 F.3d at 1215. Given that the government has

cross-appealed the district court’s downward departure and its failure to consider

Pyne as a career offender, we discuss these two Guidelines issues in order to allow

the district court to calculate properly the Guidelines range on remand.

      First, we address the downward departure. The government has shown that

there was no legally permissible basis in the Guidelines for the district court’s

downward departure from criminal history category VI to category IV. We

recognize that the Sentencing Guidelines allow for a downward departure where

“the defendant’s criminal history category substantially over-represents the

seriousness of the defendant’s criminal history.” U.S.S.G. §4A1.3(b)(1).3

However, where the defendant is a career offender, such departure may not exceed


       3
         U.S.S.G. §4A1.3(b)(1) states: “STANDARD FOR DOWNWARD DEPARTURE.—If
reliable information indicates that the defendant’s criminal history category substantially over-
represents the seriousness of the defendant’s criminal history or the likelihood that the defendant
will commit other crimes, a downward departure may be warranted.”

                                               10
one criminal history category. U.S.S.G. § 4A1.3(b)(3)(A).4 Moreover, the district

court erred by basing its §4A1.3(b)(1) downward departure at least in part on the

underlying facts of Pyne’s prior convictions, rather than on their timing or pattern.

See United States v. Rucker, 171 F.3d 1359, 1363 (11th Cir. 1999) (district court

may not base a downward departure on the court’s view that defendant’s prior

convictions involved relatively minor crimes).

       Second, we address Pyne’s classification as a career offender. Under

U.S.S.G. §4B1.1, “[a] defendant is a career offender if (1) the defendant was at least

eighteen years old at the time the defendant committed the instant offense of

conviction; (2) the instant offense of conviction is a felony that is either a crime of

violence or a controlled substance offense; and (3) the defendant has at least two

prior felony convictions of either a crime of violence or a controlled substance

offense.” For purposes of determining career offender status, a defendant has “two

prior felony convictions” if (1) the defendant’s prior convictions were for “either a

crime of violence or a controlled substance offense,” and (2) “the sentences for at

least two of the aforementioned felony convictions are counted separately under the

provisions of §4A1.1(a), (b), or (c).” U.S.S.G. §4B1.2(c) (emphasis added).


       4
        U.S.S.G. §4A1.3(b)(3)(A) states: “LIMITATION ON EXTENT OF DOWNWARD
DEPARTURE FOR CAREER OFFENDER.—The extent of a downward departure under this
subsection for a career offender within the meaning of §4B1.1 (Career Offender) may not exceed
one criminal history category.”

                                             11
      Thus, the career offender provision in §4B1.2(c) refers back to counting

under §4A1.1, which governs assessment of points to determine a defendant’s

criminal history category. Only unrelated convictions are counted separately under

§4A1.1(a), (b), or (c). U.S.S.G. §4A1.2(a)(2). Therefore, to qualify for career

offender status, Pyne’s two prior convictions must be unrelated. See United States

v. Duty, 303 F.3d 1240, 1241 (11th Cir. 2002) (“To qualify as two prior felony

convictions [for the purpose of career offender status], the prior offenses must be

unrelated”); United States v. Vasquez, 389 F.3d 65, 73 (2d Cir. 2004) (“‘related’

felony convictions count as one for purposes of the career offender guideline”);

United States v. Martins, 413 F.3d 139, 151 (1st Cir. 2005) (same).

      Pyne was classified as a career offender based on his two prior convictions

for attempted home invasion, offenses that the original PSI classified as unrelated.

Although these two felonies are “crimes of violence” for purposes of the

Guidelines, see U.S.S.G. §4B1.2(a)(2), there is a question in this case as to whether

the convictions are related and thus his sentences on them are not counted

separately under §4A1.1(a), (b) or (c), but rather his second conviction is counted

under §4A1.1(f). 5


       5
         “Prior sentences imposed in related cases are to be treated as one sentence for purposes of
§4A1.1(a), (b), and (c).” U.S.S.G. §4A1.2(a)(2). Where two violent felonies are related, the first
is counted under §4A1.1(a), (b), or (c), while the second is counted under §4A1.1(f). See also
U.S.S.G. § 4B1.2, cmt. n. 3 (“The provisions of §4A1.2 (Definitions and Instructions for Computing

                                                12
       At sentencing, Pyne argued that his two prior convictions were related for

the purpose of computing criminal history points because the convictions were

consolidated for sentencing. The PSI indicates that (1) Pyne’s two attempted home

invasions occurred on August 15, 1996, and August 21, 1996, respectively; (2)

Pyne was arrested for these offenses on August 22, 1996; and (3) the sentencing

hearing for both offenses was held on October 16, 1996. According to the

Guidelines, in the context of computing criminal history points, “[p]rior sentences

are not considered related if they were for offenses that were separated by an

intervening arrest. . . . Otherwise, prior sentences are considered related if they

resulted from offenses that . . . were consolidated for trial or sentencing.” U.S.S.G.

§4A1.2, cmt. n. 3.

      The government argued that despite the consolidation of Pyne’s two home

invasion felonies for sentencing, the offenses were separated by an intervening

arrest and should therefore be classified as unrelated convictions. The

government’s argument was based on the PSI’s statement that Pyne had been

arrested in between his commission of the first and second attempted home

invasions. According to the PSI, on August 20, 1996, police were dispatched to



Criminal History) are applicable to the counting of convictions under §4B1.1 [i.e., the career
offender provision].”).


                                             13
break up a fight in which Pyne was involved.6 On October 22, 1996, Pyne pled

guilty to a disorderly conduct charge arising from the fight and served ten days in

county jail. Because the fight occurred after Pyne’s August 15, 1996 offense but

before his August 21, 1996 offense, the government argued that the two offenses

were “separated by an intervening arrest” and were therefore not related.

      Although the PSI lists August 20, 1996 as the “date of arrest” for Pyne’s

disorderly conduct citation, the Probation Officer orally clarified at the sentencing

hearing that Pyne was never arrested for the August 20, 1996 disorderly conduct

incident; he was merely cited. Based on this testimony, the district court found that

the disorderly conduct citation did not constitute an “intervening arrest” and that the

two attempted home invasions were therefore related.

      Because Pyne’s two prior convictions were related, the district court then

reduced Pyne’s criminal history points from eight to seven points.7 The Guidelines

problem as to Pyne’s career offender status arises because the court’s holding that



       6
       In one place, the PSI states incorrectly that the incident occurred on April 20, 1996; the
remainder of the PSI and the sentencing hearing make clear that August 20, 1996 is the correct date.
       7
         The district court explained that the disorderly conduct citation “is not an intervening event
for purposes of 4A1.1(f) . . . however, because the second [attempted home invasion] is – or does
constitute a crime of violence, it will be scorable with one [criminal history] point as opposed to the
two that were given.” Based on this change, the district court assessed Pyne with seven criminal
history points, as opposed to the eight originally assessed by the PSI. See also U.S.S.G. §4A1.1(f)
(assigning one criminal history point for a crime of violence related to another crime already
scored).

                                                 14
Pyne’s prior convictions were “related” for purposes of calculating his criminal

history points also potentially impacts his career offender status. The district court

appears to have believed that whether or not the attempted home invasions were

“related” affected only the calculation of Pyne’s criminal history points and not the

determination of his career offender status.

      We say potentially because there is some confusion in the record regarding

when or whether Pyne was arrested for the disorderly conduct offense or the first

home invasion offense. This confusion makes it unclear whether Pyne’s attempted

home invasions were separated by an intervening arrest and therefore whether the

offenses were unrelated or related. There is also uncertainty as to whether any of

Pyne’s other convictions than the attempted home invasions would qualify Pyne for

career offender status. Because there is ambiguity in the record concerning the

circumstances of Pyne’s prior convictions and concerning the district court’s

relevant findings, we conclude that the career offender issue should be addressed by

the district court in the first instance at the new sentencing hearing. Both parties

should be given the opportunity on remand to present anew evidence and briefs

relevant to whether Pyne has two prior convictions that qualify him for career

offender status.

                                 IV. CONCLUSION



                                           15
      In summary, because the district court committed statutory Booker error and

the government did not show that error to be harmless, we vacate Pyne’s sentence

in its entirety and remand for resentencing under an advisory Guidelines regime.

On remand the district court shall determine whether Pyne is a career offender and

shall properly calculate the Guidelines range in accordance with that finding. The

district court shall then sentence Pyne under an advisory Guidelines regime,

considering both the properly calculated Guidelines range and other statutorily

permissible sentencing considerations.          See 18 U.S.C. § 3553(a); Booker, 125

S.Ct. at 757.8



VACATED and REMANDED.




       8
         We do not decide the reasonableness of any particular sentence in this case, whether falling
within a properly calculated Guidelines range or not. Further, nothing herein should be construed
as indicating whether Pyne is or is not a career offender; that issue should be reviewed ab initio by
the district court.

                                                16
