United States v. Maurice Antoine Marion , 144 F. App'x 768 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 20, 2005
No. 04-16229
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00298-CR-T-23-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICE ANTOINE MARION,
a.k.a. Clayton Otis Marion,
a.k.a. Jermain Powell,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 20, 2005)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Maurice Antoine Marion appeals his conviction and sentence imposed for
possession of a firearm by a convicted felon, in violation of 18 U.S.C.
section 922(g). Marion makes two arguments on appeal. Marion argues, for the
first time on appeal, that, in enacting 18 U.S.C. section 922(g), Congress exceeded
its power under the Commerce Clause. Second, Marion argues that, under United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), the district court erred when
it enhanced his base offense level, under a mandatory guidelines scheme, based
upon a determination by the district court that Marion possessed a firearm in
connection with another felony offense. Because section 922(g) is constitutional,
we affirm Marion’s conviction. We vacate Marion’s sentence and remand this case
to the district court because the error in sentencing Marion was not harmless
beyond a reasonable doubt.
I. BACKGROUND
On May 21, 2004, Marion was arrested while riding a bicycle after police
responded to a complaint of armed burglary and aggravated battery with a weapon.
A .38 caliber handgun was found in the front pocket of Marion’s pants. Marion,
who had two felony convictions, was charged with being a felon in possession of a
weapon in violation of 18. U.S.C. section 922(g). Marion pleaded guilty.
At sentencing, the district court added four levels to the base offense level
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because it found that Marion possessed the firearm in connection with another
felony offense, specifically armed burglary and aggravated assault. Marion
objection to the enhancement on the basis of Blakely v. Washington, 542 U.S. ___,
124 S. Ct. 2531 (2004). The district court overruled Marion’s objection to the
enhancement and to the application of the Sentencing Guidelines and sentenced
Marion to 51 months’ imprisonment.
II. STANDARD OF REVIEW
“[A] constitutional objection that is timely, . . . receives the benefit of
preserved error review.” United States v. Candelario, 240 F.3d 1300, 1305 (11th
Cir. 2001). Where an error was preserved below, we review the case de novo and,
“if error is found, it is generally subject to the harmless error analysis of
Fed.R.Crim.P. 52(a).” Id. at 1303 n.3. Rule 52(a) provides that “[a]ny error,
defect, irregularity, or variance that does not affect substantial rights must be
disregarded.” Fed. R. Crim. P. 52(a).
III. DISCUSSION
Because we have consistently upheld the constitutionality of section 922(g)
under the Commerce Clause, see, e.g., United States v. Wright, 392 F.3d 1269,
1280 (11th Cir. 2004), and United States v. Nichols, 124 F.3d 1265, 1266 (1997),
we discuss only Marion’s argument of an error in sentencing.
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There are two types of error under Booker: (1) Sixth Amendment, or
constitutional, error based upon sentencing enhancements 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. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). There are also
two harmless error standards. “One of them applies to Booker constitutional
errors, the other to Booker statutory errors.” Id. Booker constitutional error is
harmless when the government can show, beyond a reasonable doubt, that error did
not contribute to the ultimate sentence. Booker statutory error, however, is subject
to a less demanding test. Id. A non-constitutional 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. at 1292. If the sentence was not “substantially swayed” by
the error, then the sentence is due to be affirmed in spite of the error. Id. at 2329.
The district court erred when it enhanced Marion’s sentence under a
mandatory guidelines system. See Shelton, 400 F.3d at 1330-31. Because the
error was constitutional error, we must vacate Marion’s sentence unless the
government can show, beyond a reasonable doubt, that the error did not contribute
to the ultimate sentence. The government cannot meet its burden.
The district court sentenced Marion in the middle of the guideline range.
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The record is ambiguous as to what sentence the district court would have imposed
had it applied the guidelines in an advisory manner. The government, therefore,
cannot show that the error in sentencing was harmless beyond a reasonable doubt.
IV. CONCLUSION
Because the error in sentencing Marion was not harmless, Marion’s sentence
is
VACATED AND REMANDED.
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