                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 05-13924                   JUNE 26, 2006
                           Non-Argument Calendar            THOMAS K. KAHN
                                                                CLERK
                         ________________________

                   D. C. Docket No. 04-00288-CR-1-ODE-1

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                    versus

TOPAZ CRAIG DARDEN,

                                                     Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (June 26, 2006)

Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Topaz Craig Darden appeals his conviction and sentence for possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g). First, Darden argues that the

district court erred in not allowing him to introduce as evidence medical records

from the day of his arrest or records of a 911 call made by a witness to his arrest,

both of which indicated that Darden may have been assaulted by police during his

arrest. Darden sought to introduce this evidence and impeach the trial testimony of

his arresting officer. Second, Darden asserts that the district court erred in not

granting his request for a mistrial after a witness testified that Darden was on

probation at the time of his arrest. Third, Darden contends that the district court

erred in sentencing him under the Armed Career Criminal Act (“ACCA”), when

the prior convictions upon which the court relied in enhancing his sentence were

not charged in his indictment or proven to a jury beyond a reasonable doubt.

Finally, Darden argues that the district court erred in concluding that, even after

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), it

could not sentence him below the Guideline range because our decision in United

States v. Rucker, 171 F.3d 1359 (11th Cir. 1999), limited its discretion.



Admission of Medical Records and 911 Call

      We review the district court’s evidentiary rulings for abuse of discretion.

United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005), cert. denied, __



                                           2
S.Ct. __ (Feb. 21, 2006). Furthermore, we will only reverse a district court’s

evidentiary rulings for harmful error. See United States v. Wilson, 578 F.2d 67, 68

(5th Cir. 1978).

      Hearsay is a statement, other than one made by the declarant while testifying

at trial, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid.

801(c). As a general rule, hearsay is not admissible except as provided by the

hearsay exceptions. Fed.R.Evid. 802. Federal Rule of Evidence 803(4) defines a

hearsay exception for statements made for the purpose of medical diagnosis or

treatment in this way:

      Statements made for purposes of medical diagnosis or treatment and
      describing medical history, or past or present symptoms, pain, or
      sensations, or the inception or general character of the cause or
      external source thereof insofar as reasonably pertinent to diagnosis or
      treatment.

Fed.R.Evid. 803(4). The advisory committee notes to this rule give the following

explanation as to the scope of the rule:

      [Fed.R.Evid. 803(4)] also extends to statements as to causation,
      reasonably pertinent to [purposes of diagnosis or treatment], in accord
      with the current trend. Statements as to fault would not ordinarily
      qualify under this latter language. Thus a patient’s statement that he
      was struck by an automobile would qualify but not his statement that
      the car was driven through a red light.

Fed.R.Evid. 803(4) advisory committee’s note (citations omitted).




                                           3
      The statement in Darden’s medical records that he was beaten by police

contains a mixture of admissible and inadmissible evidence because, while the

statement that Darden was “beaten” goes to cause, the statement that he was beaten

“by the cops” goes to the fault of his injuries. See Fed.R.Evid. 803(4) and advisory

committee’s note. Nevertheless, the district court did not abuse its discretion in

denying the admission of Darden’s medical records because the records did not

contradict his arresting officer’s trial testimony, and thus would not have served

any impeachment purpose. Likewise, the statement from an unidentified 911 caller

that police were jumping on Darden at the time of his arrest did not contradict the

arresting officer’s testimony about how he arrested Darden.

Motion for a Mistrial

       We review a district court’s refusal to grant a mistrial for an abuse of

discretion. United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998). “The

decision of whether to grant a mistrial lies within the sound discretion of a trial

judge as he or she is in the best position to evaluate the prejudicial effect of

improper testimony.” United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994).

“When a curative instruction has been given to address some improper and

prejudicial evidence, we will reverse only if the evidence is so highly prejudicial as

to be incurable by the trial court’s admonition.” United States v. Harriston, 329



                                            4
F.3d 779, 787 n.4 (11th Cir. 2003) (quotation omitted).

      The district court did not abuse its discretion by denying Darden’s motion

for a mistrial because the comment made by a witness at trial that Darden was on

probation at the time of his arrest was not incurably prejudicial. The district court

instructed the jury to disregard this remark. In addition, the parties stipulated

before the jury that Darden had a prior felony conviction. In light of the district

court’s instruction and the parties’ stipulation, Darden has not indicated the precise

manner in which he was prejudiced by the remark, claiming only that the jury may

have viewed him as a recent offender. See Harriston, 329 F.3d at 787 n.4; see also

United States v. Shenberg, 89 F.3d 1461, 1472 (11th Cir. 1996) (noting that this

Court presumes that the jury follows the district court’s instructions). Because this

knowledge is not so prejudicial as to demand a retrial, we hold that the district

court did not abuse its discretion.

ACCA Enhancement

      We review constitutional errors in sentencing de novo, but “will reverse the

district court only if any error was harmful.” United States v. Paz, 405 F.3d 946,

948 (11th Cir. 2005). In Almendarez-Torres v. United States, 523 U.S. 224, 228,

118 S.Ct. 1219, 1223, 140 L.Ed.2d 350 (1998), the Supreme Court held that “[a]n

indictment must set forth each element of the crime that it charges . . . [,b]ut it need



                                            5
not set forth factors relevant only to the sentencing of an offender found guilty of

the charged crime.”

      In Booker, 543 U.S. at 232-35, 125 S.Ct. at 749-51, the Supreme Court

extended its holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159

L.Ed.2d 403 (2004), and concluded that the mandatory nature of the Sentencing

Guidelines rendered them incompatible with the Sixth Amendment’s guarantee to

the right to a jury trial. The Supreme Court also explicitly reaffirmed its rule first

pronounced in Apprendi that “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at 244, 125

S.Ct. at 756.

      Prior to Booker, we held that Almendarez-Torres was good law. United

States v. Marseille, 377 F.3d 1249, 1257-58 & n.14 (11th Cir.), cert. denied, 543

U.S. 1013 (2004). After Booker, we held that the Supreme Court’s decision in

Almendarez-Torres “was left undisturbed by Apprendi, Blakely, and Booker,” and

that “a district court does not err by relying on prior convictions to enhance a

defendant’s sentence.” United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.

2005). Again, after Booker, we continued to apply Almendarez-Torres in



                                           6
explaining that “the government need not allege in its indictment and need not

prove beyond a reasonable doubt that a defendant had prior convictions for a

district court to use those convictions for purposes of enhancing a sentence.”

United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.), cert. denied,

126 S.Ct. 457 (2005) (citing Almendarez-Torres, 523 U.S. 224, 118 S.Ct. 1219).

      In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205

(2005), the Supreme Court addressed Almendarez-Torres briefly. The Court

reaffirmed the “categorical” approach to establishing a predicate prior conviction

for purposes of the ACCA and held that when a prior state conviction resulted from

a guilty plea, federal sentencing courts may only consider the terms of the charging

document, the terms of a plea agreement, the transcript of a plea colloquy with the

judge during which the factual basis for the plea was confirmed by the defendant,

or some comparable judicial record of this information, but not other underlying

documents such as police reports. Shepard, 544 U.S. at __, 125 S.Ct. at 1263. In a

separate section of the opinion, a plurality of the Court explained that a dispute

over whether a burglary was a violent felony for purposes of the Act because it was

committed in a building or enclosed space could be “described as a fact about a

prior conviction.” Id. at __, 125 S.Ct. at 1262. Nevertheless, the plurality noted

that the determination was “too far removed from the conclusive significance of a



                                           7
prior judicial record, and too much like the findings subject to Jones [v. United

States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi, to

say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” Id.

Darden does not argue in this case that the district court consulted any source that

was prohibited by Shepard.

      After Shepard, this Court in Camacho-Ibarquen noted that Almendarez-

Torres must be followed because while Shepard “may arguably cast doubt on the

future prospects of Almendarez-Torres’s holding regarding prior convictions, the

Supreme Court has not explicitly overruled Almendarez-Torres.” Camacho-

Ibarquen, 410 F.3d at 1316 n.3. In a separate opinion, this Court noted that

Shepard does not alter the understanding that “because the prior-conviction

exception remains undisturbed after Booker, a district court does not err by relying

on prior convictions to enhance a defendant’s sentence.” United States v. Orduno-

Mireles, 405 F.3d 960, 962 & n.3 (11th Cir.), cert. denied, 126 S.Ct. 223 (2005);

see also United States v. Greer, 440 F.3d 1267,1273 (11 th Cir. 2006) (reaffirming

that “unless and until the Supreme Court specifically overrules Almendarez-Torres,

[this Court] will continue to follow it”).

      Because Darden’s enhancement under U.S.S.G. § 4B1.4(b)(3)(B) for being

an armed career criminal involved a determination that he had prior qualifying



                                             8
convictions, the enhancement did not implicate the Apprendi/Blakely/Booker line

of cases because those cases clearly exempt prior convictions from the types of

facts that must be admitted by the defendant or proved to a jury beyond a

reasonable doubt in order to support a sentence enhancement. The Supreme

Court’s decisions in Apprendi, Blakely, Booker, and even Shepard, have not

overruled its holding in Almendarez-Torres that prior convictions may be

considered in enhancing sentences. Thus, after Booker, a judge still is able to

impose enhancements on the basis of a defendant’s prior conviction.

Sentencing Outside of the Guidelines Range

      In United States v. Rucker, 171 F.3d 1359, 1360-61 (11th Cir. 1999), we

vacated a defendant’s sentence imposed after the district court found that his

criminal history category over-represented the seriousness of his prior drug

offenses and, as a result, departed three criminal history categories in calculating

the defendant’s sentence. In so doing, we emphasized that the district court “erred

by looking behind the face of the convictions for purposes of determining whether

a downward departure was warranted . . . .” Id. at 1363.

      “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



                                           9
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.” Id. (quotation 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.” Shelton, 400 F.3d at 1330-31. Moreover, after Booker, in sentencing a

defendant, the district court must consider the factors provided at 18 U.S.C.

§ 3553(a) and the advisory Guideline range. See United States v. Scott, 426 F.3d

1324, 1329 (11th Cir. 2005).

      Because Darden objected below to the district court’s mandatory application

of the Guidelines, we review his claim of Booker error de novo, but reverse only

for harmful error. See Paz, 405 F.3d at 948. We apply separate harmless error

standards to Booker constitutional errors and to Booker statutory errors. United

States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005). “[C]onstitutional

errors are harmless where the government can show, beyond a reasonable doubt,

that the error did not contribute to the defendant’s ultimate sentence.” Id. at 1291

(citation omitted). In contrast, Booker statutory errors are subject to the less

demanding non-constitutional error test. Id. at 1292. A “non-constitutional error is

harmless if, viewing the proceedings in their entirety, a court determines that the



                                           10
error did not affect the sentence, or had but very slight effect.” Id. (quotation and

alterations omitted). “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.” Id. (quotation and alterations omitted). The government has the

burden of proof under both standards. See id. at 1291-92.

      In this case, the district court judge, who sentenced Darden months after the

Supreme Court issued its decision in Booker, stated that she wanted to sentence

him below the Guideline range, but that, in order to follow our decision in Rucker,

she had to work within the Guideline range. Therefore, the district court sentenced

Darden “under a mandatory Guidelines scheme,” and, in so doing, committed

statutory Booker error. See Shelton, 400 F.3d at 1330-31. Because the

government concedes that the district court erred in finding that Rucker barred the

court from sentencing Darden outside of the Guideline range, which the court

desired to do, the government has not demonstrated that the error in this case was

harmless. Accordingly, we vacate Darden’s sentence and remand his case to the

district court for resentencing. In so doing, we note that Darden raised no claim

about the calculation of his Guideline range, and thus that calculation should

control on remand. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.

2005) (stating that after Booker, district courts must consult the Guidelines and



                                          11
“[t]his consultation requirement, at a minimum, obliges the district court to

calculate correctly the sentencing range prescribed by the Guidelines”). Thus, on

remand, the district court is required to sentence Darden under an advisory

Guidelines system, considering the Guideline range of 235-293 months’

imprisonment and the factors provided at 18 U.S.C. § 3553(a). See Booker, 543

U.S. at 245-46.

Conclusion

      Based on a review of the record on appeal, we vacate Darden’s sentence and

remand his case to the district court for resentencing, considering the applicable

Guideline range and the factors provided at 18 U.S.C. § 3553(a). We affirm the

remaining issues on appeal.

      VACATED AND REMANDED IN PART; AFFIRMED IN PART.                           1




      1
          Darden’s request for oral argument is denied.

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