United States v. Bertlis E. McGriff ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15350 JULY 8, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 04-60044-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERTLIS E. MCGRIFF,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 8, 2005)
Before DUBINA, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Bertlis E. McGriff appeals his 140-month sentence for possession
with intent to distribute five grams or more of cocaine base within 1000 feet of a
playground, in violation of 21 U.S.C. § 860. The district court enhanced
McGriff’s sentence pursuant to U.S.S.G. § 4B1.1(b) based on his status as a career
offender under U.S.S.G. § 4B1.1(a).1 On appeal, McGriff argues that the Supreme
Court’s decision in United States v. Booker, 543 U.S.___, 125 S. Ct. 738, 160 L.
Ed. 2d 621 (2005), requires his resentencing because the district court erroneously
sentenced him under the then-mandatory Federal Sentencing Guidelines (“federal
guidelines”).
Because McGriff timely raised a Blakely objection in the district court, we
review his Blakely/Booker claim on appeal de novo, but will reverse only for
harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). There are
two harmless error standards, one that applies to Booker constitutional errors, and
one that applies to Booker statutory errors only. United States v. Mathenia, No.
04-15250, slip op. at 2328 (11th Cir. May 23, 2005). “[C]onstitutional errors are
harmless where the government can show, beyond a reasonable doubt, that the
error did not contribute to the defendant’s ultimate sentence.” Id. (citation
omitted). In contrast, Booker statutory errors are subject to the less demanding
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The district court found that McGriff qualified as a career offender based on his two prior
convictions for delivery of cocaine. At sentencing, McGriff admitted that delivery of a controlled
substance satisfied the career offender requirement of a “controlled substance offense” for
U.S.S.G. § 4B1.1 purposes.
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non-constitutional error test. Id. 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. at 2328-29
(internal quotations omitted). The government has the burden of proof under both
standards. See id. at 2329.
With regard to Booker constitutional errors, an individual’s Sixth
Amendment right to trial by jury is violated where a judge enhances an
individual’s sentence based solely on judicially found facts pursuant to a
mandatory guidelines system. Paz, 405 F.3d at 948. In McGriff’s case, the
district court enhanced his sentence after determining that he was a career offender
under the federal guidelines. The district court based this determination on
McGriff’s prior convictions. We repeatedly have held that a district court does not
violate the Sixth Amendment, as interpreted in Booker, when it enhances a
defendant’s sentence based on prior convictions. See United States v. Gallegos-
Aguero, No. 04-14242, slip op. at 2307-08 (11th Cir. May 18, 2005), United States
v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir. 2005). This is so because “a
prior conviction must itself have been established through procedures satisfying
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the fair notice, reasonable doubt, and jury trial guarantees.” Orduno-Mireles, 405
F.3d at 962 (quotation omitted). Based on this well-established rule, the district
court’s enhancement of McGriff’s sentence based on his prior convictions did not
violate the Sixth Amendment. Thus, the district court did not commit a Booker
constitutional error in enhancing McGriff’s sentence.2
Although the district court did not commit a Booker constitutional error, we
conclude that the district court committed Booker statutory error by applying the
Guidelines in a mandatory fashion. A Booker “statutory error occurs when the
district court sentences a defendant under a mandatory [g]uidelines scheme, even
in the absence of a Sixth Amendment enhancement violation.” Mathenia, No. 04-
15250, slip op. at 2328 (quotation omitted). In such cases, the government has the
burden the show that the error did not affect, or had but a very slight effect on, the
sentence. Id. at 2329.
In Mathenia, we concluded that the government had met this burden by
citing to a statement by the district court that, if the Supreme Court were to hold
the mandatory application of the federal guidelines unconstitutional, the district
2
McGriff also admitted that delivery of a controlled substance satisfied the career offender
requirement of a “controlled substance offense.” See Gallegos-Aguero, slip op. at 2308 (citing
Booker for the proposition that admitted facts need not be proved to a jury beyond a reasonable
doubt).
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court nonetheless would sentence the defendant identically. Id.; see also United
States v. Petho, No. 04-15412, slip op. at 2311 (11th Cir. May 18, 2005) (holding
Booker statutory error harmless in light of district court’s statement that its
sentence would be the same even if the guidelines were only advisory). In
contrast, we readily have remanded cases for resentencing upon a showing that the
district court desired to impose a lesser sentence than the one mandated by the
federal guidelines. See United States v. Dacus, 408 F.3d 686, 688-89 (11th Cir.
2005) (holding that district court committed plain error in applying the federal
guidelines in light of district court’s express desire to impose a lesser sentence);
United States v. Martinez, 407 F.3d 1170, 1174 (11th Cir. 2005) (same); Paz, 405
F.3d at 949 (holding that the district court committed constitutional error in
application of extra-verdict enhancement under federal guidelines in light of
district court’s desire to impose a lesser sentence); United States v. Shelton, 400
F.3d 1325, 1333-34 (11th Cir. 2005) (holding that the district court committed
plain error in applying the federal guidelines in light of district court’s desire to
impose a lesser sentence).
In McGriff’s case, the district court provided two alternative sentences in
the event the federal guidelines were declared unconstitutional. Both alternative
sentences fell below the 140 months McGriff actually received. Indeed, the
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district court explicitly told McGriff, “if the Supreme Court throws out the
Sentencing Guidelines, then you’re going to get a lower sentence . . . .” As the
government concedes in its brief, the district court’s alternative sentences and
above-quoted language demonstrates that the district court sentenced McGriff
under a mandatory guidelines scheme. Moreover, it demonstrates that the
government cannot meet its burden in showing that this error did not affect, or had
a very slight effect on, McGriff’s sentence. Because the record does not show
“with fair assurance that the sentence was not substantially swayed by the error,”
we conclude that the government has failed to meet its burden in proving that the
Booker statutory error was harmless. See Mathenia, No. 04-15250, slip op. at
2329. Therefore, we vacate and remand McGriff’s sentence for resentencing
consistent with Booker.
VACATED AND REMANDED.
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