                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                        FILED
                                                                   U.S. COURT OF APPEALS
                                  ___________________                ELEVENTH CIRCUIT
                                                                         August 15, 2005
                                      No. 04-13707                    THOMAS K. KAHN
                                                                           CLERK
                                  ___________________

                         D.C. Docket No. 04-80042-CR-DTKH

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                            versus

JOHN KITZELMAN,

                                                           Defendant-Appellant.

                                   __________________

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

                                     (August 15, 2005)

Before DUBINA and WILSON, Circuit Judges, and COOGLER*, District Judge.

PER CURIAM:

____________________
*Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama,
sitting by designation.
      John Kitzelman appeals his 188 month sentence imposed after he pled

guilty to one count of possessing a firearm as a convicted felon, in violation of 18

U.S.C. §§ 924(g)(1), 924(a)(2). Kitzelman originally contended that the district

court’s finding that he was subject to the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e)1 violated the Sixth Amendment. At sentencing, Kitzelman

objected based on both Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely

v. Washington, 542 U.S. 296 (2004). Kitzelman’s ACCA enhancement argument

is without merit; however, we conclude that Kitzelman’s objections were

sufficient to preserve Booker2 error. See United States v. Dowling, 403 F.3d 1242

(11th Cir. 2005).

      The district court determined that Kitzelman’s guideline range was 188 -

235, months and then applying the guidelines as mandatory, sentenced him to 188

months. While the district court followed the correct procedure as it then existed,

the district court’s mandatory application of the guideline range constituted what

this Court has referred to as a statutory Booker error. See United States v.

Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005).




      1
          18 U.S.C. § 924(e) provides for a mandatory minimum sentence of fifteen years.
      2
          United States v. Booker, 125 S. Ct. 738 (2005).

                                                2
      We will only reverse Kitzelman’s sentence if we determine that the error

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

“[statutory] error is harmless if, viewing the proceedings in their entirety, a court

determines that the error did not affect the verdict, ‘or had but very slight effect.’

If one can say ‘with fair assurance . . . that the judgment was not substantially

swayed by the error,’ the judgment is due to be affirmed even though there was

error.” United States v. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir. 2004)

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

762-63 (1946)).

      After reviewing the transcript of the sentencing hearing, we cannot say that

the Booker statutory error was harmless. Even though the defendant cannot be

sentenced to less than 180 months, the district court must resentence him, treating

the sentencing guidelines as advisory rather than mandatory.

      VACATED AND REMANDED.




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