                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                          OCTOBER 13, 2005
                             No. 04-13885
                                                          THOMAS K. KAHN
                       ________________________
                                                              CLERK

                D. C. Docket No. 04-00021-CR-J-20-MCR

UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                                  versus

REYNALDO NAVARETTE-MELENDEZ,

                                               Defendant-Appellant.

                       ________________________

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


                            (October 13, 2005)


Before BLACK, WILSON and COX, Circuit Judges.

PER CURIAM:
      Reynaldo Navarette-Melendez appeals his sentence for illegally reentering

the United States after removal, in violation of 8 U.S.C. § 1326. Navarette-

Melendez asserts the district court erred by sentencing him under a mandatory

Guidelines system. United States v. Booker, 125 S. Ct. 738 (2005). We vacate

Navarette-Melendez’s sentence and remand for resentencing under Booker.

      Navarette-Melendez was charged with one count of illegal reentry of a

removed alien, in violation of 8 U.S.C. § 1326. A jury found him guilty as

charged. Navarette-Melendez’s base offense level was 8, pursuant to U.S.S.G.

§ 2L1.2. Due to a previous deportation and drug trafficking conviction, which

resulted in a sentence exceeding 13 months, Navarette-Melendez’s total offense

level included a 16-level enhancement under § 2L1.2(b)(1)(A)(i). Accordingly,

Navarette-Melendez’s total offense level was 24. His criminal history category

was IV, based on various prior convictions. With a total offense level of 24, and a

criminal history category of IV, his Guidelines range was 77 to 96 months

imprisonment.

      Navarette-Melendez objected pursuant to Blakely v. Washington, 124 S. Ct.

2531 (2004), challenging his 16-level enhancement and arguing the jury should

have decided the question of whether his prior conviction met the definition of a

drug trafficking offense. At the sentencing hearing, Navarette-Melendez renewed

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his objection, which the district court overruled. The district judge sentenced

Navarette-Melendez to 77 months’ imprisonment and 3 years’ supervised release.

      Because Navarette-Melendez objected in the district court, we review his

sentence de novo, but reverse only for harmful error. United States v. Paz, 405

F.3d 946, 948 (11th Cir. 2005). We have established there are two types of error

under Booker: (1) Sixth Amendment, or constitutional, error based upon

sentencing enhancements, imposed in a mandatory Guidelines system and neither

admitted by the defendant nor submitted to a jury and proven beyond a reasonable

doubt; and (2) statutory error based upon sentencing under a mandatory

Guidelines system. United States v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir.

2005).

      In his supplemental brief, Navarette-Melendez concedes there is no

constitutional error, because a district court does not err in relying on prior

convictions to enhance a defendant’s sentence. See United States v. Orduno-

Mireles, 405 F.3d 960, 962 (11th Cir. 2005). Instead, he asserts the district court

committed statutory error when it sentenced him under a mandatory Guidelines

system.

      Statutory error exists where the district court imposes a sentence under a

mandatory Guidelines system. See Shelton, 400 F.3d at 1330–31. The district

                                           3
court sentenced Navarette-Melendez under a mandatory Guidelines system; thus,

statutory error exists. See id.

      Such statutory 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, 66 S. Ct.

1239, 1246, 1248 (1946)). It is the Government’s burden to show the error was

harmless. United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005).

      The Government has not met its burden. The district court sentenced

Navarette-Melendez to the bottom of the Guidelines range, and the record is silent

as to what the district court would have done if it had treated the Guidelines as

advisory. We cannot say with fair assurance the error did not substantially sway

the sentence. Therefore, we vacate Navarette-Melendez’s sentence and remand for

resentencing in light of Booker.

      We note the district court correctly calculated Navarette-Melendez’s

Guidelines range of 77 to 96 months’ imprisonment. See United States v.

Crawford, 407 F.3d 1174, 1178–79 (11th Cir. 2005) (stating after Booker, district

                                           4
courts must consult the Guidelines and “[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 Navarette-Melendez according to Booker, considering the Guidelines

advisory range of 77 to 96 months’ imprisonment and “other statutory concerns as

well, see [18 U.S.C.] § 3553(a) (Supp. 2004).” Booker, 125 S. Ct. at 757.1

       VACATED AND REMANDED.




       1
          We do not mean to suggest by our holding that the district court must impose any
particular sentence on remand. Rather, we merely hold the Government did not meet its burden
of showing the statutory error was harmless. We also do not attempt to decide now whether a
particular sentence might be reasonable in this case.

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