                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                                  JULY 25, 2005
                                 No. 04-15728                   THOMAS K. KAHN
                             Non-Argument Calendar                   CLERK
                           ________________________

                       D.C. Docket No. 04-60131-CR-WPD

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

      versus

DAVERO ROLLE,

                                                   Defendant-Appellant.
                         __________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________
                                (July 25, 2005)

Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      Appellant plead guilty to a four-count indictment charging him with drug

trafficking in violation several federal statutes, 21 U.S.C. §§ 841(a)(1), 846, and

963, and the district court sentenced him to concurrent prison terms of 168
months. He appeals his sentences, contending that the district court acted in

violation of the Sixth Amendment under Blakely v. Washington, 542 U.S. ___,

124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S.

___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005).1 Because appellant raised this Sixth

Amendment issue before the district court, we will set aside his sentences and

remand the case for resentencing unless the error, if any, was harmless. See

United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

       In Blakely, the Supreme Court held that the imposition of a sentencing

enhancement under the State of Washington’s mandatory sentencing guidelines

system based upon facts neither admitted by the defendant nor found by the jury

infringed the defendant’s Sixth Amendment right to trial by jury. Blakely, 542

U.S. at     , 124 S.Ct. at 2534-38. In Booker, the Supreme Court extended this

holding to sentences imposed under the federal sentencing scheme. Booker, 543

U.S. at       , 125 S.Ct. at 760. Under Booker, two errors can occur: (1)

constitutional error, which is caused by the court’s imposition of the sentence

called for by the application of mandatory guidelines based on facts neither



       1
          Appellant also challenges the district court’s enhancement of his base offense level under
U.S.S.G. § 2D1.1(b)(2)(B). Because we vacate appellant’s sentences and remand the case for a new
sentencing hearing—in which the court may consider evidence and arguments deemed irrelevant
under the pre-Booker sentencing scheme—we do not address this challenge.

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admitted by the defendant nor found by a jury beyond a reasonable doubt, and (2)

statutory error, which is caused by the court’s imposition of the sentence called for

by the application of mandatory guidelines. United States v. Shelton, 400 F.3d

1325, 1330-31 (11th Cir. 2005).

      “Constitutional errors are harmless where the government can show beyond

a reasonable doubt, that the error did not contribute to the defendant’s ultimate

sentence.” United States v. Mathenia, No. 04-15250, slip op. at 2328 (11th Cir.

May 23, 2005) (mandate withheld). Statutory errors are subject to a less

demanding harmless error standard. Id. 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.” Id. at 2328-9 (internal

quotations and citation omitted).

      The district court did not commit a constitutional error because appellant

admitted to the probation officer who prepared the presentence investigation

report, and the plea hearing established, the facts the court used to enhance

appellant’s sentences. The court, however, as the government concedes,




                                          3
committed a statutory error. The question we must decide, then, is whether the

error was harmless.

       In Paz, we said that the harmless error analysis puts the burden on the

government to show that the mandatory (as opposed to the advisory) application of

the guidelines did not contribute to the defendant’s sentence. 405 F. 3d at 948.

We cannot tell from a reading of the record in this case what the district court

would have done had it understood the guidelines to be advisory rather than

mandatory and, moreover, had properly considered the sentencing factors set out

in 18 U.S.C. § 3553(a). The Government therefore cannot show that the

mandatory application of the Guidelines was harmless. We consequently vacate

appellant’s sentences and remand the case for resentencing.

      SO ORDERED.




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