                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                 May 23, 2005
                               No. 04-15489
                                                            THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                      D. C. Docket No. 04-20235-CR-JAL

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                     versus

GUSTAVO DE LA CRUZ-PEREZ,

                                                        Defendant-Appellant.

                         ________________________

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

                                (May 23, 2005)

Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     We withdraw our previous opinion and substitute this opinion in its place.

     Gustavo De La Cruz-Perez appeals his 24-month concurrent sentences for
unlawful re-entry after deportation, in violation of 8 U.S.C. section 1326(a) and

(b)(2), and fraud and misuse of visas, permits, and other documents, in violation of

18 U.S.C. section 1546. Cruz-Perez argues that the district court erred under

United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), both by increasing

Cruz-Perez’s sentence based on previous felony drug convictions, and by treating

the Sentencing Guidelines as mandatory instead of applying them in an advisory

fashion. Because Booker does not apply to the use of previous convictions in

sentencing and any error in the use of the Guidelines in a mandatory fashion was

harmless, we affirm the district court.

      Cruz-Perez pleaded guilty to both crimes. During Cruz-Perez’s sentencing

hearing, the district court applied a twelve-level enhancement for a previous felony

conviction for drug trafficking. Cruz-Perez objected to the enhancement and

argued that the court violated the Fifth and Sixth Amendments, under Blakely v.

Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), because the previous

conviction had neither been admitted by Cruz-Perez nor found by a jury, and had

not been included in the indictment. The district court overruled the objection,

sentenced Cruz-Perez to 24 months’ imprisonment, and stated that the sentence

would be the same if the Supreme Court held that Blakely applied to the

Sentencing Guidelines. Cruz-Perez appealed.



                                          2
      Cruz-Perez argues that, under Blakely, the district court violated the Fifth

and Sixth Amendment by increasing his sentence because of a previous conviction

he had not admitted and that was not included in the indictment, and that we should

remand for Cruz-Perez to be sentenced under the Guidelines without the twelve-

level enhancement. This argument fails. In Almendarez-Torres v. United States,

523 U.S. 224, 118 S. Ct. 1219 (1998), the Supreme Court “held 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. This conclusion was left

undisturbed by Apprendi, Blakely, and Booker.” United States v. Shelton, 400

F.3d 1325, 1329 (11th Cir. 2005). We concluded that “a district court does not err

by relying on prior convictions to enhance a defendant’s sentence.” Id.

      Cruz-Perez also argued that, even if Booker did not apply to the use of

previous convictions in sentencing, the district court violated Booker by finding

that his previous conviction was a drug-trafficking felony. This argument also

fails. In Shelton, we held that, under Almendarez-Torres, the district court did not

err when it increased Shelton’s sentence based on three previous crimes that were

drug-related.. Id. at 1327, 1329. We made no distinction between finding a

previous conviction, and finding a previous conviction to be drug-related. Id. In



                                          3
United States v. Orduno-Mireles, we held that, under Almendarez-Torres, the

district court did not err when it increased Orduno-Mireles’s sentence based on a

previous conviction that the court found to be a crime of violence. No. 04-12630,

slip op. at 6 n.3 (11th Cir. April 6, 2005). We held that the district court did not

resolve “disputed facts related to the prior conviction which were not adjudicated

in the prior proceeding.” Id. Because the district court did not resolve disputed

facts related to Cruz-Perez’s previous conviction that were not adjudicated in his

previous proceeding, the district court did not err by finding that Cruz-Perez’s

previous conviction was a drug-trafficking felony.

         Cruz-Perez also argues that, under Booker, the district court erred when it

treated the Guidelines as mandatory during sentencing. It is “Booker error for the

district court to sentence [a prisoner] under a mandatory Guidelines scheme, even

in the absence of a Sixth Amendment enhancement violation.” Id. at 1330-31. We

must disregard this error, however, if the error was harmless. Fed. R. Crim. P.

52(a).

         “To find harmless error, we must determine that the error did not affect the

substantial rights of the parties.” United States v. Hernandez, 160 F.3d 661, 670

(11th Cir. 1998). Because the district court did not violate the Sixth Amendment,

the only error was the statutory error of applying the Guidelines as mandatory.



                                            4
That error is “harmless if, viewing the proceedings in their entirety, a court

determines that the error did not affect the [sentence], ‘or had but 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. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir.

2004) (citations omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 762,

66 S. Ct. 1239, 1248 (1946)). We recently held that, where a district court

explained that it would have imposed the same sentence even if the Guidelines did

not apply, the error was harmless even under the more stringent “harmless beyond

a reasonable doubt” standard for constitutional error. United States v. Robles, ___

F.3d ___, 2005 WL 1083487 (11th Cir. May 10, 2005). The district court stated

that even if the Supreme Court applied “the Blakely rationale” to the Guidelines,

Cruz-Perez’s sentence would have been the same. The Booker error was,

therefore, harmless.

      AFFIRMED.




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