United States v. Jose Manuel Monsivais-Ortiz , 154 F. App'x 758 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 14, 2005
No. 04-15276 THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00053-CR-3-RV-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MANUEL MONSIVAIS-ORTIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Florida
(November 14, 2005)
Before TJOFLAT and KRAVITCH, Circuit Judges, and JORDAN*, District
Judge.
_________________________________
*Honorable Adalberto Jordan, United States District Judge for the Southern District of Florida,
sitting by designation.
PER CURIAM:
Appellant appeals the sentence he received—imprisonment for sixty-four
months—after pleading guilty to illegal entry into the United States after
deportation. At sentencing, appellant, citing Blakely v. Washington, 542 U.S.
296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), objected to being sentenced under
the Sentencing Guidelines on the ground that the Guidelines were
unconstitutional. The district court overruled his objection, concluding (properly
so at the time) that Blakely’s holding did not apply to the federal sentencing
scheme, and imposed a sentence within the Guidelines range. In United States v.
Booker, 543 U.S. ____, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), however, the
Supreme Court made its Blakely holding applicable to sentencing under the
Guidelines; hence, we review appellant’s sentence under Booker’s holdings.
In treating the Guidelines as mandatory rather than advisory (as Booker
requires), the district court, in sentencing appellant, committed statutory error.
The question we must decide is whether the error is harmless.
A statutory Booker 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
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though there was error.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th
Cir. 2005).
After examining the sentencing record in this case, we cannot say that the
error was harmless. The district court gave no indication of the sentence it would
have imposed had it treated the Guidelines as advisory, nor did it indicate the
weight it would have given the sentencing objectives of 18 U.S.C. §
3553(a)(2)(A),(B),(C), and (D) in fashioning appellant’s sentence. We therefore
vacate appellant’s sentence and remand the case for further proceedings.
SO ORDERED.
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