                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                          FILED
                           ________________________               U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                        JUNE 23, 2005
                                   No. 04-16338
                                                                     THOMAS K. KAHN
                               Non-Argument Calendar                     CLERK
                             ________________________

                    D. C. Docket No. 04-00141-CR-ORL-28JGG

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,
                                       versus

JAMES ROCKET,
a.k.a. James Rockett,
a.k.a. James Rockett, III,

                                                               Defendant-Appellant.

                             ________________________

                Appeal from the United States District Court for the
                            Middle District of Florida
                          _________________________
                                 (June 23, 2005)

Before BIRCH, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

      James Rocket appeals his 72-month sentence imposed pursuant to his plea of

guilty to possession of a firearm by a felon, in violation of 21 U.S.C. § 922(g)(1).
On appeal, Rocket argues that the district court committed reversible error under

Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), and United States v.

Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), by sentencing him under a mandatory

Guidelines system.

      Because Rocket preserved his Booker claim by raising it at sentencing, we

review the challenge to his sentence de novo, but will vacate and remand only for

harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). “A non-

constitutional 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. Mathenia, __ F.3d __ (11th Cir. May 23, 2005)

(quotations, brackets, and citations omitted). Under harmless error review, the

government bears the burden of showing that the error was harmless. Id.

      We have explained that there are two types of Booker error – (1) the error of

imposing a sentencing enhancement based on judicial findings that go beyond the

facts admitted by the defendant or found by the jury, or “constitutional error,” and

(2) the non-constitutional error of being sentenced under a mandatory guidelines

system, or “statutory error.” United States v. Shelton, 400 F.3d 1325, 1330-31



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(11th Cir. 2005). Because Rocket alleges only statutory error, we confine our

discussion to that argument.

      Due to the nature of the Supreme Court’s Booker remedy, we have

concluded that a district court errs whenever it sentences a defendant under a

mandatory guidelines scheme. Shelton, 400 F.3d at 1330-31. Furthermore, the

government has failed to meet its burden of proving that the error of sentencing

Rocket under a mandatory guidelines scheme did not affect his substantial rights.

Therefore, the district court’s error was not harmless.

      Upon review of the record and the parties’ briefs, we vacate and remand for

resentencing consistent with Blakely and Booker.

      VACATED and REMANDED.




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