                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                     FILED
                           ________________________          U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                   August 15, 2005
                                 No. 04-16685                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                        D. C. Docket No. 04-20457-CR-JAL

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

NATHANIEL JONES,

                                                               Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________
                                 (August 15, 2005)


Before CARNES, MARCUS, and PRYOR, Circuit Judges.

PER CURIAM:

      Nathaniel Jones appeals his sentences for possession of heroin with intent to

distribute and conspiracy to possess heroin with intent to distribute. See 21 U.S. C.
§§ 841(a)(1) and 846. Although the district court did not err when it enhanced his

sentence based on his previous convictions and facts admitted during the plea

colloquy, the court erred under United States v. Booker, 543 U.S. __, 125 S. Ct.

738 (2005), when it sentenced Jones under a mandatory guidelines scheme.

Because, as the government concedes, the statutory error was not harmless, we

vacate and remand for resentencing.

                                I. BACKGROUND

      Jones and a co-conspirator, Alfred Smith, were indicted for conspiracy to

possess a controlled substance with intent to distribute it and possession of a

controlled substance with intent to distribute it. Jones pleaded guilty to both

crimes without the benefit of a plea agreement. At the plea change hearing, the

government stated that Jones and Smith agreed to sell 255 bags of heroin to a

confidential informant, but before the deal occurred, Smith noticed a car being

used by DEA agents for surveillance, and reentered his car. The agents then

apprehended Jones and Smith and found 255 bags of heroin in Jones’s car. The

bags contained 9 grams of heroin. In response to a question from the district court,

Jones stated that the proffer by the government was correct.

      The Presentence Investigation Report originally set Jones’s base offense

level at 14, but because of two previous state convictions for drug trafficking,



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Jones was a career offender under section 4B1.1 of the Sentencing Guidelines. His

base offense level, therefore, was 32. The PSI recommended a downward

adjustment of 3 levels for acceptance of responsibility. Although Jones had only 6

criminal history points, because he was a career offender, he automatically had a

criminal history category of VI. The guideline range was 151 to 181 months.

      Jones objected to the PSI on the grounds that Blakely v. Washington, 542

U.S. 296, 124 S. Ct. 2537 (2004), precluded the court from enhancing his sentence

based on facts not charged in the indictment. He also objected to application of the

career offender enhancement. At the sentencing hearing, the district court

overruled all of Jones’s objections and sentenced him to two concurrent terms of

151 months of imprisonment and 3 years of supervised release. Jones appealed.

                                II. DISCUSSION

      Jones makes three arguments on appeal. He first contends that the

Sentencing Guidelines violate the Separation of Powers doctrine. Jones next

argues that his sentence violates the Eighth Amendment. His final argument is that

the district court erred under Booker when it enhanced his sentence under a

mandatory guidelines scheme based on facts that were not proved to a jury beyond

a reasonable doubt. We address each argument in turn.




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                              A. Separation of Powers

      We review Jones’s argument that the Sentencing Guidelines violate the

Separation of Powers doctrine de novo. See Thompson v. Nagle, 118 F.3d 1442,

1447 (11th Cir. 1997). Although Jones does not explain his argument, he states in

his brief that he is relying on a district court opinion from Oregon, United States v.

Detwiler, 338 F. Supp.2d 1166 (D. Or. 2004). In Detwiler, a district court in

Oregon found that the Feeney Amendment, contained in Section 401 of the

Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act,

amended the Sentencing Guidelines in a way that violates the Separation of Powers

doctrine because it united the power to prosecute and the power to sentence within

the executive branch. Id. at 1174-79. Mistretta v. United States, 488 U .S. 361,

109 S. Ct. 647 (1989), directly contradicts that position, and, in Booker, the

Supreme Court explicitly reaffirmed its analysis in Mistretta and rejected a

separation of powers argument against the application of the Sentencing

Guidelines. See 543 U.S. at __, 125 S. Ct. at 755. The Sentencing Guidelines do

not violate the Separation of Powers doctrine.

                                B. Eighth Amendment

      We also review Jones’s argument that his sentence violates the Eighth

Amendment de novo. See Thompson, 118 F.3d at 1447. Much like his separation



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of powers argument, Jones does not explain how his sentence violates the Eighth

Amendment, but states that he is relying on an amicus brief filed in United States

v. Angelos, 345 F. Supp.2d 1227 (D. Utah 2004). Jones did not make the amicus

brief part of the record on appeal, but Angelos mentions its arguments. Id. at 1256.

Although it is close as to whether Jones properly preserved this argument on

appeal, we will address it.

      In Angelos, the defendant, a first-time offender who was convicted of three

counts of possession of a firearm in connection with dealing marijuana, received a

sentence of 55 years. Id. at 1257. The defendant and amici apparently argued

“that the sentence [wa]s unconstitutional as disproportionate to the offenses at

hand.” Id. at 1256. Although the district court believed that the sentence violated

the Eighth Amendment, it followed the precedent of the Supreme Court in Hutto v.

Davis, 454 U.S. 370, 102 S. Ct. 703 (1982), where the defendant was sentenced to

40 years in prison for possessing nine ounces of marijuana, which was worth $200

in 1980. Id. at 1259.

      Angelos does not help Jones. Unlike Angelos, Jones is a career offender.

Other than the instant conviction, he has two state convictions for drug trafficking.

The first conviction was in 1994 for possession of cannabis with intent to

distribute, and the second was in 2000 for possession of cocaine with the intent to



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distribute. He also had numerous other criminal convictions, although most were

relatively minor. In addition, Jones’s sentence was 151 months, significantly less

than the 55 year sentence imposed in Angelos. The sentence imposed was not a

violation of the Eighth Amendment.

                                   C. Booker Error

      Jones’s remaining argument has some merit. Jones argues that the district

court erred under Booker when it enhanced his sentence under a mandatory

guidelines scheme based on facts that were not proved to a jury beyond a

reasonable doubt. There are two kinds of sentencing errors based on Booker. The

first is constitutional error: “the 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) (citations omitted). The second is statutory error: “[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.”

Shelton, 400 F.3d at 1330-31.

      Because Jones raised both constitutional and statutory error in the district

court, we review for harmless error. United States v. Mathenia, 409 F.3d 1289,



                                           6
1291 (11th Cir. 2005). Each type of Booker error requires a different standard of

review to determine whether the error was harmless. Booker constitutional error is

harmless when the government can show, beyond a reasonable doubt, that error did

not contribute to the ultimate sentence. Id. at 1292. Booker statutory error is

subject to a less demanding test. Id. A statutory error is harmless if, viewing the

proceedings in their entirety, the error did not affect the sentence or had only a

“very slight effect.” Id. If the sentence was not “substantially swayed” by the

error, then the sentence is due to be affirmed in spite of the error. Id.

      The district court did not commit constitutional error under Booker when it

applied the career offender enhancement based on Jones’s previous convictions. In

Almendarez-Torres v. United States, 523 U.S. 224 118 S. Ct. 1219 (1997), the

Supreme Court concluded that recidivism is not a separate element of an offense

that the government is required to prove beyond a reasonable doubt. 523 U.S. at

247, 118 S. Ct. at 1232-33. Booker specifically excepted previous convictions

from its holding. See Booker, 543 U.S. at __, 125 S. Ct. at 756. Almendarez-

Torres remains binding precedent until the Supreme Court decides otherwise. See

Orduno-Mireles, 405 F.3d at 962-63 (11th Cir. 2005); Shelton, 400 F.3d at 1329.

      Additionally, the district court did not commit constitutional error when it

enhanced his sentence based on facts admitted during the plea colloquy. In



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Shelton, we concluded that a sentence imposed based on facts that a defendant

admitted is not constitutional error. Id. at 1330. Not only did Jones not object to

the factual statement of the government, he stated that it was “correct.” The

proffer by the government included the allegation that Jones possessed with the

intent to distribute 255 bags of heroin, a total of 9 grams. The district court did not

commit constitutional error when it sentenced Jones based on that fact.

      Although there was no constitutional error, the district court erred when it

sentenced Jones under a mandatory guidelines system. See Shelton, 400 F.3d at

1330-31. The government concedes that it cannot prove that the error did not

affect Jones’s sentence. There is nothing in the record to suggest that had the

district court known the guidelines were advisory, the district court would have

imposed the same sentence. The statutory error, therefore, was not harmless.

                                III. CONCLUSION

       The district court erred when it sentenced Jones under a mandatory

guidelines scheme. Because the statutory error was not harmless, we vacate and

remand for resentencing.

      VACATED AND REMANDED.




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