United States v. Francisco Javier Varela Alvarez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 13, 2005
No. 04-16737
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00087-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAVIER VARELA ALVAREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(July 13, 2005)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Francisco J. Valera Alvarez appeals his 57-month sentence imposed for
illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b).
Alvarez argues that the district court erred under Blakely v. Washington, 542 U.S.
__, 124 S. Ct. 2531 (2004), now United States v. Booker, 543 U.S. ___, 125 S. Ct.
738 (2005), when it sentenced him under the mandatory sentencing Guidelines
system. He contends that the government cannot prove that the error was harmless
because the court sentenced him to the lowest end of the guideline range and
denied his motion for downward departure based on lack of authority. Alvarez
further asserts that post-Booker, “under 18 U.S.C. § 3553(a)(6), the district court
must consider ‘the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct’
such as availability of formal fast-track departure programs in only some districts.”
We have explained that there are two types of Booker error: (1) a Sixth
Amendment error–that is, imposing a sentencing enhancement in a mandatory
Guidelines system based on judicial findings that go beyond the facts admitted by
the defendant or found by the jury; and (2) statutory error–being sentenced under a
sentencing Guidelines scheme that is mandatory. United States v. Shelton, 400
F.3d 1325, 1330–31 (11th Cir. 2005).
A. Sixth Amendment Error
Since Alvarez raised his Blakely/Booker argument before the district court,
we review his Booker claims for harmless error. See United States v. Paz, 405
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F.3d 946, 948 (11th Cir. 2005).
Constitutional error must be disregarded if the error is harmless beyond a
reasonable doubt. United States v. Candelario, 240 F.3d 1300, 1307 (11th Cir.
2001). In the instant case, we find no constitutional Booker error, so we need not
reach whether the error is harmless beyond a reasonable doubt.
In Booker, the Supreme Court “left undisturbed its holding in
[Almendarez-Torres v. United States, 523 U.S. 224, 227, 118 S. Ct. 1219, 1233
(1998)], that recidivism is not a separate element of an offense that the government
is required to prove beyond a reasonable doubt.” United States v. Orduno-Mireles,
405 F.3d 960, 962 (11th Cir. 2005). Moreover, the Court reaffirmed Apprendi’s
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.” Id. Accordingly, in Orduno-Mireles we
observed that “the Court’s holding in Booker . . . is not implicated when a
defendant’s sentence is enhanced based on a prior conviction.” Id.To the extent that the Supreme Court’s recent decision in Shepard arguably
undermined Almendarez-Torres, that decision does not undermine our outcome
here. See Shepard v. United States, 543 U.S. __, 125 S. Ct. 1254 (2005). Here,
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Alvarez objects to the 16-level enhancement of his sentence based on his prior
conviction of a crime of violence, specifically aggravated assault. However, in the
Application Note of U.S.S.G. § 2L1.2, aggravated assault is referenced as a crime
of violence. U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). Therefore, the district court did
not make any qualitative factual findings with regard to Alvarez’s prior conviction.
As the district court did not look beyond the judicial record and the fact of
Alvarez’s prior conviction, its application of the 16-level enhancement was proper
under Almendarez-Torres and did not implicate Shepard.
Because Almendarez-Torres remains good law, the district court did not err
in finding that Alvarez should receive an enhancement based on his prior
conviction. Thus, we conclude that the district court’s use of prior convictions to
enhance Alvarez’s sentence under a mandatory Guidelines system did not violate
the Sixth Amendment.
B. Statutory Error
In Shelton, we implicitly held that when a defendant raised a Blakely/Booker
constitutional claim in his initial brief, we should also consider whether there was
statutory error. See Shelton, 400 F.3d at 1330; see also United States v. Camacho-
Ibarquen, __ F.3d __, 2005 WL 1297236, No. 04-11155 (11th Cir. June 2, 2005).
Thus, we consider this issue on appeal.
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Although the district court did not violate the Sixth Amendment in
sentencing Alvarez, it did commit a statutory Booker error. Due to the nature of
the Supreme Court’s Booker remedy, we have concluded that a district court has
committed Booker error whenever it sentences a defendant under a mandatory
Guidelines scheme, even in the absence of a Sixth Amendment error. Shelton, 400
F.3d at 1330–31.
When an error is nonconstitutional, it is harmless if it does not affect the
substantial rights of the parties. See 28 U.S.C. § 2111; United States v. Guzman,
167 F.3d 1350, 1353 (11th Cir. 1999). “[A] nonconstitutional error requires
reversal only if it resulted in actual prejudice because it had substantial and
injurious effect.” Guzman, 167 F.3d at 1353 (internal quotations and citation
omitted). The government bears the burden of showing that the error did not affect
Alvarez’s substantial rights. United States v. Fern, 155 F.3d 1318, 1327 (11th Cir.
1998). “The non-constitutional harmless error standard is not easy for the
government to meet.” United States v. Mathenia, __F.3d__, No. 04-15250, 2005
WL 1201455 at *2 (11th Cir. May 23, 2005). Here, the government has failed to
meet its burden.
In sentencing Alvarez to the lowest point in the guideline range, the court
commented that “the sentence addresses the seriousness of the offense and the
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sentencing objectives of punishment, deterrence, and incapacitation.” This is some
evidence that the court would perhaps resentence Alvarez to the same term of
incarceration after considering the factors in 18 U.S.C. § 3553(a). The court,
however, made no other comment regarding the appropriateness of the sentence.
Although the district court considered the sentence appropriate and did not express
dissatisfaction with the Guidelines or desire to impose a lesser sentence, the district
court did sentence Alvarez at the lowest end of the guideline range. The record
does not show with fair assurance that the sentence was not substantially swayed
by the court’s application of the Sentencing Guidelines as mandatory as oppose to
advisory. Therefore, the government has failed to show that the district court’s
error did not have a substantial and injurious effect on Alvarez’s sentence.
We note the district court correctly calculated Alvarez’s Guideline range of
57-71 months’ imprisonment. See United States v. Crawford, 407 F.3d 1174,
1178-79 (11th Cir. 2005) (stating after Booker, district courts must consult the
Guidelines and “[t]his consultation requirement, at a minimum, obliges the district
court to calculate correctly the sentencing range prescribed by the Guidelines”).
Thus, on remand the district court is required to sentence Alvarez according to
Booker, considering the Guidelines range of 57-71 months’ imprisonment and
“other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).”
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Booker, 125 S. Ct. at 757.1
For the foregoing reasons, we VACATE Alvarez’s sentence and REMAND
to the district court for re-sentencing consistent with the Supreme Court’s decision
in Booker.
SENTENCE VACATED and REMANDED.
1
We do not mean to imply by our holding that on remand the district court must first impose
a lesser sentence. Rather, we merely hold the Government has not met its burden to show the
statutory error was harmless. We also will not attempt to decide now whether a particular sentence
below the Guideline range might be reasonable in this case.
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