United States v. Roberto Amilcar Mendez-Ortiz ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14686 JULY 7, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-20168-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO AMILCAR MENDEZ-ORTIZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 7, 2005)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Roberto Amilcar Mendez-Ortiz appeals his 46-month sentence imposed after
he pleaded guilty to one count of illegal reentry of a previously deported alien, a
violation of 8 U.S.C. sections 1326(a) and (b)(2). At sentencing, Mendez-Ortiz
raised an objection under Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531(2004). On appeal, Ortiz argues that because the district court considered the
Sentencing Guidelines to be mandatory, he should be re-sentenced in the light of
United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005). Because the district
court stated during sentencing that it would impose the same sentence even if the
Guidelines were held unconstitutional, the error of applying advisory Guidelines as
mandatory was harmless, and we affirm Mendez-Ortiz’s sentence.
The district court erred under Booker by treating the Sentencing Guidelines
as mandatory when it sentenced Mendez-Ortiz. United States v. Shelton, 400 F.3d
1325, 1330-31 (11th Cir. 2005). This is the only error Mendez-Ortiz raises on
appeal. Because the error of the district court was non-constitutional, however, our
review for harmless error is less stringent:
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.
United States v. Mathenia, ___ F.3d ___, 2005 WL 1201455, at *2 (11th Cir. May
23, 2005) (internal quotations and citations omitted). As it was imposing sentence,
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the district court stated that it imposed “as an alternative sentence, in the event that
the Federal Sentencing Guidelines are found to be unconstitutional, also a 46-
month sentence because the Court believes a 46-month sentence is most
appropriate under the circumstances in light of the defendant’s criminal history.”
Because the district court would have imposed the same sentence if the Guidelines
were not mandatory, the statutory error was harmless.
AFFIRMED.
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