United States v. Sonia I. Alvarez , 164 F. App'x 893 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
____________________________ ELEVENTH CIRCUIT
January 26, 2006
No. 04-15228 THOMAS K. KAHN
Non-Argument Calendar CLERK
___________________________
D.C. Docket No. 03-20641-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SONIA I. ALVAREZ,
a. k. a. Sonia E. Alvarez,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Florida
__________________________
(January 26, 2006)
Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Defendant-Appellant Sonia I. Alvarez appeals the 30-month sentence
imposed upon her conviction, pursuant to a plea agreement, of conspiracy to
commit bank and mail fraud and commission of mail fraud. We vacate and
remand for resentencing.
Defendant raises a single issue on appeal: whether the district court erred
under Booker v. United States, 125 S.Ct. 738 (2005) when it imposed a sentence
that included a two-level upward adjustment for use of sophisticated means and an
additional two-level upward adjustment for abuse of a position of trust, each
enhancement based on facts found by the sentencing court and not contained in the
plea agreement. Because Defendant’s constitutional claims were raised timely in
the district court, they are subject to preserved error review.1 We review a
preserved Booker (then Blakely) claim on appeal de novo, but we reverse only for
harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
We see no constitutional Booker error. Defendant’s objection to the extra-
verdict enhancements was that the enhancements were applied based on facts not
found by a jury or contained in Defendant’s plea agreement. But Defendant never
1
Booker was decided by the Supreme Court after Defendant was sentenced. At setencing,
Defendant raised his constitutional claims based on Blakely v. Washington, 124 S.Ct. 2531 (2004).
Because the Booker decision applies to all cases on direct review, we apply Booker to this appeal.
Booker, 125 S.Ct. at 769.
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disputed the facts contained in the PSI and never took issue with the prosecutor’s
recital of facts during the plea colloquy. A defendant’s failure to dispute facts
contained in the PSI operates as an admission of those facts for Booker purposes.
See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (concluding
that sentence enhancement based on extra-verdict drug quantity not violative of
Booker where defendant failed to dispute facts in the PSI). Sentencing
enhancement based on admitted facts states no Sixth Amendment violation under
Booker. United States v. Petho, 409 F.3d 1277, 1280 n.1 (11th Cir. 2005)
(“Because Petho admitted to the facts underlying these enhancements, there is no
Sixth Amendment error.”).
Although no constitutional Booker error has been shown, two kinds of
sentencing error may be claimed under Booker: constitutional and statutory. See,
e.g., United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005).
“[C]onstitutional error is the use of extra-verdict enhancements to reach a
guidelines result that is binding on the sentencing judge.” Shelton, 400 F.3d at
1331 (quoting United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.)), cert.
denied, 125 S.Ct. 2935 (2005). Statutory Booker error occurs when the district
court misapplies the guidelines by considering them as binding “even in the
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absence of a Sixth Amendment enhancement violation.” Shelton, 400 F.3d at
1330-31.
At sentencing, the district court commented that it was not known “what the
Supreme Court will ultimately do with Blakely,” and noted that it understood that
existing Eleventh Circuit precedent required that the sentencing guidelines be
applied. The district court stated that if the Supreme Court “throws out the
Guidelines, that issue is preserved, and I’m sure [Defendant] will be back here for
resentencing ... and I’ll certainly be happy to reconsider what sentence should be
imposed.” Because the district court sentenced Defendant under a mandatory
guidelines system, there was statutory Booker error.
Two harmless error standards exist for review of Booker error. Mathenia,
409 F.3d at 1291-92. Constitutional error requires reversal unless “the
government can show, beyond a reasonable doubt, that the error did not contribute
to the defendant’s ultimate sentence.” Id. at 1291. Statutory Booker error --
unlike constitutional Booker error -- requires reversal “only if [the error] resulted
in actual prejudice because it had substantial and injurious effect or influence in
determining the [result].” United States v. Gallegos-Aguero, 409 F.3d 1274, 1277
(11th Cir. 2005), quoting United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir.
1999). The government bears the burden of showing the absence of effect on the
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defendant’s substantial rights of the statutory error . Mathenia, 409 F.3d at 1292.
A sentence is due to be affirmed if it can be said “‘with fair assurance ... that the
[sentence] was not substantially swayed by the error.’” Id. (quoting United States
v. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir. 2004), cert. denied., 125 S.Ct.
2951 (2005)).
In the light of the district court’s comments at sentencing, the Government
concedes that it can not meet the burden of proving that the mandatory application
of the guidelines was harmless. What sentence the district court would have
imposed had it considered the guidelines advisory is unknown and, on this record,
unknowable. Because was cannot say with fair assurance that the statutory
Booker error was harmless, we vacate Defendant’s sentence and remand for
resentencing consistent with Booker.2
VACATED and REMANDED.
2
Defendant has abandoned on appeal any guideline calculation claim. We agree with the
Government’s contention that remand should be limited; the district court should not reopen the
calculations underlying the guidelines range. See United States v. Mesa, 247 F.3d 1165, 1171 n.6
(11th Cir. 2001) (issue not raised during initial appeal is abandoned and may not be advanced on
remand). The district court, however, is not bound to sentence within this guideline range. See
United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005) (Once the district court calculates
correctly the guideline range, it “may impose a more severe or more lenient sentence as long as the
sentence is reasonable, see Booker, 125 S.Ct. at 767.”).
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