                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            AUGUST 26, 2005
                              No. 04-15514                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 04-00042-CR-T-17-MAP

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                   versus

ISMAEL CLEMENTE-PALOMA,

                                                        Defendant-Appellant.

                        ________________________

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

                             (August 26, 2005)


Before BIRCH, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Ismael Clemente-Paloma, a Mexican citizen, appeals his 41-month sentence
for illegally re-entering the United States. See 8 U.S.C. §§ 1326(a) & (b)(1).

Although the district court did not err when it enhanced his sentence based on a

previous conviction for a crime of violence, the court erred under United States v.

Booker, 543 U.S. __, 125 S. Ct. 738 (2005), when it sentenced Clemente-Paloma

under a mandatory guidelines scheme. Because, as the government concedes, the

statutory error was not harmless, we vacate and remand for resentencing.

                                I. BACKGROUND

      Clemente-Paloma was convicted under Florida law of unlawful sexual

activity with a minor, placed on five years probation, and removed from the United

States. Clemente-Paloma later re-entered the United States, was arrested for a

probation violation, and was then arrested and charged with illegal re-entry into the

United States. Clemente-Paloma pleaded guilty to illegal re-entry.

      At the sentencing hearing, Clemente-Paloma objected to the

recommendation of the Presentence Investigation Report that his base offense level

be enhanced by 16 levels because his previous crime was a crime of violence. The

district court overruled the objection, concluded that the sexual activity with a

minor was a crime of violence, and applied the 16-level enhancement. Clemente-

Paloma also argued that the enhancement violated the Fifth and Sixth

Amendments. The district court sentenced Clemente-Paloma to 41 months of



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imprisonment, the low end of the guideline range, followed by3 years of

supervised release.

                                  II. DISCUSSION

      Clemente-Paloma makes two arguments on appeal. He first asserts that the

district court erred when it applied the 16-level enhancement under section 2L1.2

of the Sentencing Guidelines because he contends that his previous conviction was

not a crime of violence. Clemente-Paloma next argues that the district court erred

under Booker when it enhanced his sentence, under a mandatory guideline scheme,

based on facts that were not proved to a jury beyond a reasonable doubt. We

address each argument in turn.

                                 A. Crime of Violence

      We review de novo a determination by the district court that a previous

conviction qualifies as a crime of violence under section 2L1.2(b)(1)(A) of the

Sentencing Guidelines. United States v. Orduno-Mireles, 405 F.3d 960, 961 (11th

Cir. 2005). The guidelines state that, if a defendant was previously deported after a

conviction for a felony that is a crime of violence, his offense level is increased by

16 levels. U.S.S.G. § 2L1.2(b)(1)(A). Clemente-Paloma argues that the district

court erred because his conviction for unlawful sexual activity with a minor is not a

crime of violence.



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      Our precedent clearly forecloses Clemente-Paloma’s argument. In Orduno-

Mireles, we concluded that a “felony conviction for unlawful sexual activity with

certain minors qualifies as a crime of violence within the Guideline definition,

either as sexual abuse of a minor or statutory rape.” Orduno-Mireles, 405 F.3d at

961. The district court did not err when it enhanced Clemente-Paloma’s sentence

based on his previous conviction for unlawful sexual activity with a minor. See id.

at 961-62.

                                  B. Booker Error

      Clemente-Paloma also argues that the district court erred under Booker

when it enhanced his sentence under a mandatory guidelines scheme based on facts

that were not proved to a jury beyond a reasonable doubt. We have explained that

there are two kinds of sentencing errors based on Booker: the first is called

constitutional error, because“the Sixth 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,” United States v. Rodriguez, 398 F.3d 1291,

1297 (11th Cir. 2005) (citations omitted); and the second is called statutory error,

because “[a]s a result of Booker’s remedial holding, Booker error exists when the

district court misapplies the Guidelines by considering them as binding as opposed



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to advisory.” United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

       Because Clemente-Paloma raised in the district court both constitutional and

statutory error under Booker, we review his objections for harmless error. United

States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). Each kind of Booker

error requires a different standard of review to determine whether the error was

harmless. Booker constitutional error is harmless when the government can show,

beyond a reasonable doubt, that error did not contribute to the ultimate sentence.

Id. at 1292. Booker statutory error is subject to a less demanding test. Id. A

statutory error is harmless if, viewing the proceedings in their entirety, the error did

not affect the sentence or had only a “very slight effect.” Id. If the sentence was

not “substantially swayed” by the error, then the sentence should be affirmed in

spite of the error. Id.

       The district court did not commit constitutional error under Booker when it

enhanced Clemente-Paloma’s sentence based on his previous conviction for

unlawful sexual activity with a minor. In Almendarez-Torres v. United States, 523

U.S. 224 118 S. Ct. 1219 (1997), the Supreme Court concluded that recidivism is

not a separate element of an offense that the government is required to prove

beyond a reasonable doubt. 523 U.S. at 247, 118 S. Ct. at 1232-33. Booker

specifically excepted previous convictions from its holding. See Booker, 543 U.S.



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at __, 125 S. Ct. at 756. We have concluded that the Supreme Court left its

holding in Almendarez-Torres undisturbed, and Almendarez-Torres remains good

law and binding precedent until the Supreme Court decides otherwise. See

Orduno-Mireles, 405 F.3d at 962-63 (11th Cir. 2005); Shelton, 400 F.3d at 1329.

      Although there was no constitutional error, the district court erred when it

sentenced Clemente-Paloma under a mandatory guidelines system. See Shelton,

400 F.3d at 1330-31. The government concedes that it cannot prove that the error

did not affect Clemente-Paloma’s sentence, and there is nothing in the record to

suggest that had the district court known the guidelines were advisory, the district

court would have imposed the same sentence. The statutory error, therefore, was

not harmless.

                                III. CONCLUSION

       The district court did not err when it enhanced Clemente-Paloma’s sentence

based on a previous conviction for a crime of violence. The district court erred

when it sentenced Clemente-Paloma under a mandatory guidelines scheme.

Because the statutory error was not harmless, we vacate and remand for

resentencing.

      VACATED AND REMANDED.




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