United States v. John Kitzelman , 140 F. App'x 931 ( 2005 )

[DO NOT PUBLISH]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.
3