United States v. Jorge Alberto Godinez-Santos , 148 F. App'x 772 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 11, 2005
No. 04-14826 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 04-20234-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ALBERTO GODINEZ-SANTOS,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 11, 2005)
ON PETITION FOR REHEARING
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
The Court on its own motion grants rehearing and vacates the opinion that
was issued in this case on April 19, 2005. This opinion takes the place of that one.
Jorge Alberto Godinez-Santos appeals his fifty-seven-month sentence for
being found unlawfully in the United States after having been previously deported,
in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Godinez-Santos argues that the
district court violated his rights under the Fifth and Sixth Amendments as set out
in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and United States v. Booker, 543
U.S. ___, 125 S. Ct. 738 (2005), by increasing his offense level based on a prior
conviction when the fact of that conviction was not charged in the indictment,
found by a jury, or admitted by Godinez-Santos. He argues that Almendarez-
Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), is inapplicable and
should not be followed by this Court because it will likely be overruled by the
Supreme Court. He also contends that the district court committed a statutory
error under Booker, and, as a result, his sentence should be vacated and his case
remanded for resentencing.
We review Apprendi issues de novo but will reverse or remand only for
harmful error. United States v. Anderson, 289 F.3d 1321, 1325–26 (11th Cir.
2002); United States v. Candelario, 240 F.3d 1300, 1306–07 (11th Cir. 2001).
2
In United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.), cert. denied,
125 S. Ct. 637 (2004), we reviewed an argument by the defendant that the district
court improperly enhanced his sentence based on four prior convictions that were
not alleged in the indictment. This Court stated: “In Almendarez-Torres v. United
States, the Supreme Court held that the government need not allege in its
indictment and need not prove beyond a reasonable doubt that a defendant had
prior convictions for a district court to use those convictions for purposes of
enhancing a sentence.” Marseille, 377 F.3d at 1257 (citing Almendarez-Torres v.
United States, 523 U.S. 224, 118 S. Ct. 1219 (1998)). In Marseille, we refused to
interpret the Supreme Court’s rationale in Apprendi as overruling Almendarez-
Torres. Id. In United States v. Camacho-Ibarquen, ___ F.3d. ___, 2005 WL
1297236 (11th Cir. June 2, 2005) (per curiam), we again affirmed that
Almendarez-Torrez remains good law, noting that it has not been overruled by
Apprendi, Blakely, or Booker. Godinez-Santos’ argument that his Fifth and Sixth
Amendment rights were violated pursuant to Booker is thus without merit.
However, as we recognized in United States v. Shelton, 400 F.3d 1325,
1300–31 (11th Cir. 2005), a district court commits a Booker statutory error by
sentencing the defendant “under a mandatory Guidelines scheme, even in the
absence of a Sixth Amendment enhancement violation.” Because Godinez-Santos
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properly preserved this argument,1 “we review the defendant’s Booker claim in
order to determine whether the error was harmless.” United States v. Mathenia,
___ F.3d ___, 2005 WL 1201455 (11th Cir. May 23, 2005).
“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. (quotation and marks omitted). The burden is on the
government to meet this standard. Id.The district court gave no indication during the Godinez-Santos’ sentencing
hearing that it would not have given him a lesser sentence had it considered the
guidelines as advisory rather than mandatory. As a result, the government has not
carried its burden of demonstrating that the Booker statutory error was harmless.
VACATED AND REMANDED.
1
During his sentencing hearing, which took place before the Supreme Court’s decision in
Booker was handed down, Godinez-Santos raised the argument that his sentence was
unconstitutional under Blakely. He did the same in his initial brief to this Court. Under our
Shelton decision, that is enough to preserve and present the statutory error issue.
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