                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                       FILED
                        ________________________
                                                                U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                              No. 04-15307
                                                                     JUNE 14, 2005
                          Non-Argument Calendar
                                                                  THOMAS K. KAHN
                        ________________________                      CLERK

                 D. C. Docket No. 03-00480-CR-T-23-MAP

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

WILLIAM H. HYDE,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________
                              (June 14, 2005)


Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

     William Hyde appeals his sentence of twenty-one months’ imprisonment,
imposed following his guilty pleas for embezzlement, in violation of 18 U.S.C. §

641, and conversion, in violation of 42 U.S.C. § 408(a)(5). For the reasons that

follow, we vacate and remand for resentencing.

                                    I. Background

      Hyde was charged by superseding indictment with one count of

embezzlement of Social Security Funds, in violation of 18 U.S.C. § 641, and one

count of conversion of Social Security benefits, in violation of 42 U.S.C. §

408(a)(5). On the morning of the trial, he agreed to plead guilty to both counts

without a written plea agreement.

      At the change of plea hearing, the government proffered that Hyde had

applied to be the representative payee for his disabled brother’s Social Security

benefits following the death of their father. The brother briefly lived with Hyde,

but moved out of state during the commission of the offenses. Hyde received his

brother’s disability and supplemental security income benefits checks for almost a

year and either cashed or deposited them in his own account even though he knew

that money was supposed to be used for his brother’s care. During this period, he

obtained $51,083.46, but gave his brother only $2,931. Hyde admitted that the

facts were correct, and he entered his guilty plea to both counts of the indictment.

The court accepted the plea and adjudicated Hyde guilty.



                                          2
      The probation officer prepared a presentence investigation report (“PSI”),

using the 2003 edition of the manual and assigning a base offense level of six

under U.S.S.G. § 2B1.1(a), with a six-level increase based on the amount of loss

involved. The probation officer then included (1) a three-level enhancement for

vulnerable victim under U.S.S.G. § 3A1.1, based on a determination that Hyde

intentionally selected his brother, who was unable to care for himself, and (2) a

two-level enhancement for abuse of trust under U.S.S.G. § 3B1.3, based on a

determination that Hyde’s representative status enabled him to convert the funds.

The probation officer recommended a two-level reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1(a). With an adjusted offense level of fifteen

and a criminal history category I, Hyde’s guidelines range was eighteen to twenty-

four months’ imprisonment.

      Hyde objected to the guidelines calculations, arguing that his base offense

level could not be enhanced based on facts not found by a jury beyond a reasonable

doubt, in light of Blakely v. Washington, 542 U.S. , 124 S. Ct. 2531 (2004). He

also contested the factual basis for the various enhancements. The government

objected to the reduction for acceptance of responsibility. At sentencing, the court

rejected Hyde’s challenge to the amount of loss because he had admitted to the

amount during the plea colloquy. The court overruled Hyde’s other objections.



                                          3
The court also denied any reduction for acceptance of responsibility based on

Hyde’s lack of cooperation and the fact that he forced the government to prepare

for trial by waiting until the morning of trial to enter a plea. Applying the 2000

edition of the guidelines manual to avoid any ex post facto problems, the court

calculated the base offense level as four with a seven-level increase for the amount

of loss under U.S.S.G. § 2B1.1(a) and (b)(1)(H). This adjusted offense level was

increased by three levels based on the vulnerable-victim enhancement and by two

levels based on the abuse- of-trust enhancement, resulting in a total adjusted

offense level of sixteen. Hyde’s resulting guideline range was twenty-one to

twenty-seven months’ imprisonment. The court sentenced Hyde to twenty-one

months’ imprisonment on each count, to run concurrently, and ordered restitution

in the amount of $48,152.46.

                                    II. Discussion

      Hyde argues that this case should be remanded for resentencing

in light of United States v. Booker, 543 U.S.     , 125 S. Ct. 738, 749-56 (2005)

because his offense level was increased based on two extra verdict enhancements

under a mandatory guidelines system: (1) the vulnerable-victim enhancement and

(2) the abuse-of-trust enhancement. In Booker, the Supreme Court held that

Blakely applied to the federal sentencing guidelines and “that the Sixth



                                          4
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.”

Booker, 125 S. Ct. at 749-56. This court has explained that a Booker error also

results from a district court’s use of a mandatory guidelines scheme, even in the

absence of any constitutional error. United States v. Shelton, 400 F.3d 1325, 1330-

31 (11th Cir. 2005).

      Here, we need not determine whether the error is constitutional or statutory

because the government concedes that the error is of the constitutional variety.

Moreover, the government also concedes that Hyde preserved his Booker error

claim. Therefore, we review his claim de novo and will reverse unless any error

was harmless. United States v. Robles,         F.3d   , 2005 WL 1083487, *3 (11th

Cir. May 10, 2005). For Booker constitutional errors to be harmless, it must be

“clear beyond a reasonable doubt that the error complained of did not contribute to

the sentence obtained.” United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)

(quoting United States v. Candelario, 240 F.3d 1300, 1307 (11th Cir. 2001))

(citations, bracket, and internal quotations omitted); see also United States v.

Mathenia,     F.3d     , 2005 WL 1201455, at *2 (11th Cir. May 23, 2005)

(discussing different harmless error standards for constitutional error versus



                                           5
statutory error). The burden is on the government to prove that the error was

harmless beyond a reasonable doubt. Robles, 2005 WL 1083487 at *3.

       Here, the issue is whether the constitutional error was harmless. We

conclude that it was not. The government simply has not carried its burden to

prove that the error was harmless beyond a reasonable doubt. See Paz, 405 F.3d at

948-49. At the sentencing hearing, the district court made no revealing statements

about the sentence imposed or the impact of Blakely on its sentence. Absent some

indication from the court that it would have imposed the same sentence if the

guidelines were only advisory, the government cannot show harmless error.

Compare Robles, 2005 WL 1083487 at *3 (in Booker constitutional error case,

affirming a defendant’s sentence where district judge said that “my sentence would

be the same regardless of whether Blakely had invalidated the guidelines or

not...”). Thus, Hyde must be resentenced under the advisory guidelines system.1

       Accordingly, we VACATE and REMAND to the district court for

resentencing consistent with Booker.


       1
         We also reject Hyde’s argument that he was entitled to a reduction for acceptance of
responsibility. We review a district court’s determination that a defendant is not entitled to a
reduction for acceptance of responsibility for clear error. United States v. Williams,    F.3d ,
2005 WL 1058931, at *9-10 (11th Cir. May 6, 2005). Hyde waited until the morning of the trial
to plead guilty and he was uncooperative with the probation officer regarding his financial status,
which related to the restitution required by the conduct. The district court found this conduct
was inconsistent with acceptance of responsibility. This finding was not clearly erroneous.
Thus, on remand, the district court need not readdress whether Hyde was entitled to a reduction
for acceptance of responsibility.

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