United States v. Bobby Gene Shivers , 136 F. App'x 250 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14605 June 9, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D.C. Docket No. 04-00079-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY GENE SHIVERS,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(June 9, 2005)
Before HULL, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Bobby Gene Shivers appeals his sentence of thirty months imprisonment,
imposed following his guilty plea for possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g). On appeal, he challenges his sentence in light
of 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, 160 L.Ed.2d 621 (2005)
Shivers was indicted for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g). He agreed to plead guilty without a negotiated
plea agreement.
At the change-of-plea hearing, the government proffered that it could prove
that police observed Shivers loitering in a known drug area and approached
Shivers to inquire whether he had a controlled substance or weapon. Shivers
admitted that he had a gun, and he handed police a .38 caliber firearm. In a later
statement to ATF agents, Shivers admitted that the gun was his. The government
further stated that it had Shivers’s prior conviction record, demonstrating that
Shivers had a 1979 state conviction for armed robbery, a 1984 conviction for a
controlled substance offense, and a 1988 federal conviction for bank robbery.
Shivers admitted that the factual proffer was correct and entered a plea of guilty,
which the court accepted.
The presentence investigation report (“PSI”) calculated a total offense level
of 17, without any extra-verdict enhancements, and a criminal history category III
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based on Shivers’s prior convictions, resulting in a guidelines range of 30 to 37
months imprisonment.
Shivers did not file any objections to the PSI, but moved the court to declare
the guidelines unconstitutional in light of Blakely. The district court denied the
motion, noting that Blakely was inapplicable because Shivers’s sentence was
based on prior convictions. The court sentenced Shivers to 30 months
imprisonment, stating that this sentence was “adequate.”
We review a defendant’s preserved challenges to his sentence de novo but
will reverse and remand only for harmful error. United States v. Riley, 250 F.3d
1303, 1307 n.5 (11th Cir. 2001).
In Booker, the Supreme Court reiterated its previous holding that, “[a]ny
fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” 125 S.Ct. at 749, 756. The Court then determined that the
mandatory nature of the sentencing guidelines was incompatible with its
constitutional holding, and, therefore, the guidelines could be advisory only. The
Court, however, explained that although the guidelines were advisory only, courts
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should consider the guidelines in addition to the sentencing factors in 18 U.S.C.
§ 3553(a), in determining a reasonable sentence. 125 S.Ct. at 756-57, 764.
Here, Shivers cannot show any constitutional error in his sentence based on
the use of a prior conviction. Even after Booker, the government is not required to
plead or prove to a jury a defendant’s prior convictions and there is no
constitutional error when the court imposes sentence based on these prior
convictions. United States v. Shelton, 400 F.3d 1325, 1327 (11th Cir. 2005).
Moreover, Shivers admitted during the plea colloquy that the government could
prove his prior convictions. Thus, he has admitted the facts for Booker purposes.
See United States v. Raad, No. 04-15300, slip op. at 2020 n.1 (11th Cir. April 21,
2005); Shelton, 400 F.3d at 1333 n.10. Because the government is not required to
plead or prove prior convictions under Booker, and Shivers admitted to his prior
conviction at the change-of-plea hearing, there is no constitutional error in his
sentence.
Although there is no Sixth Amendment violation in this case, there is
statutory error because the court imposed sentence under a mandatory guideline
scheme. Thus, the burden falls on the government to show that the error was
harmless. United States v. Mathenia, No. 04-15250, manuscript op. at 5-6 (11th
Cir. May 23, 2005). “A non-constitutional error is harmless if, viewing the
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proceedings in their entirety, a court determines that the error did not affect the
sentence, or had but very slight effect.”1 Id. at 5-6 (citations and quotations
omitted).
Here, we cannot say that the government has met its burden to show that the
error was harmless. In imposing a sentence of 30 months imprisonment, the
district court stated that the sentence was “adequate.” We cannot determine from
this comment whether the court would have sentenced Shivers differently had it
known the guidelines were not mandatory, but advisory only. Because we do not
know, the government has not met its burden. United States v. Petho, No. 04-
15412 manuscript op. at 4 (11th Cir. May 18, 2005); United States v. Davis, No.
04-14585 (11th Cir. May 4, 2005).
Accordingly, we VACATE and REMAND for resentencing.
1
The heightened “beyond a reasonable doubt” test applies to harmless error cases involving
constitutional errors. United States v. Robles, No. 04-13598, slip op. at 2257 (11th Cir. May 10,
2005). Here, there is statutory, but not constitutional, error.
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