United States v. Emperatriz Navarro-Lenis

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14420
August 25, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-20197-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMPERATRIZ NAVARRO-LENIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 25, 2005)
Before BIRCH, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Emperatriz Navarro-Lenis appeals her 46-month sentence, imposed after she
pled guilty to importing 100 grams or more of heroin, in violation of 21 U.S.C. §§
952(a), 960(b). On appeal, Navarro-Lenis argues that the imposition of her
sentence violated Blakely v. Washington, 542 U.S. 296, , 124 S. Ct. 2531,
2534-36, 159 L. Ed. 2d 403 (2004), and United States v. Booker, 543 U.S. ___,
125 S. Ct. 738, 756, 160 L. Ed. 2d 621 (2005), because she was held responsible
for a drug amount higher than that charged in the indictment or agreed to by her
and because she was sentenced under a mandatory Guidelines scheme.
Because Navarro preserved her arguments in the district court, our review is
de novo, but we will reverse and remand only for harmful error. See United States
v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). Preserved constitutional and statutory
errors under Booker are reviewed for harmless error. See United States v.
Mathenia, 409 F.3d 1289, 1291-93 (11th Cir. 2005). Constitutional error is
“harmless” when the government can show beyond a reasonable doubt that the error
did not contribute to the defendant’s ultimate sentence. Id. at 1291. Statutory error
is reviewed under a less demanding test: whether a review of the proceedings, as a
whole, shows that the error either did not affect the sentence or had only a slight
effect. Id. at 1291-92. The government has the burden of proof under both
standards. Id.Upon thorough review of the record and careful consideration of the parties’
brief, we find no constitutional error in the district court’s sentencing scheme.
However, the government concedes that there was Booker non-constitutional, or
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statutory, Booker error and that it cannot meet its burden to establish harmlessness.
Accordingly, we vacate and remand Navarro-Lenis’s sentence for resentencing
consistent with Booker.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 435(2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury and proved beyond a reasonable doubt.” Apprendi, 530
U.S. at 490, 120 S.Ct. at 2362-63. Thereafter, in Blakely, the Court held that “the
‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant. . . . In other words, the relevant ‘statutory maximum’ is not the
maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” Blakely, 542 U.S. at
___, 124 S.Ct. at 2537.
Finally, in Booker, the Court found “no distinction of constitutional
significance between the Federal Sentencing Guidelines and the Washington
procedures at issue” in Blakely. Booker, 543 U.S. at ___, 125 S.Ct. at 749. The
Court, therefore, held that the mandatory nature of the federal guidelines rendered
them incompatible with the Sixth Amendment’s guarantee to the right to a jury trial.
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Id. at ___,125 S.Ct. at 749-51. In extending its holding in Blakely to the
Guidelines, the Court explicitly reaffirmed its rationale in Apprendi 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. at ___, 125 S.Ct. at 756.
There are two types of Booker error: (1) constitutional error, which is a
violation of the Sixth Amendment and occurs when a district court enhances a
defendant’s sentence based on judicial fact finding, and (2) statutory error, which
takes place when the district court applies the guidelines in a mandatory fashion.
United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 (11th Cir. 2005).
Here, there was no Sixth Amendment violation because, at the plea colloquy
hearing, Navarro-Lenis admitted to the facts that were used to reach her offense
level of 28. The government’s factual proffer, to which Navarro-Lenis agreed,
provided that she imported approximately 500 grams of heroin. Indeed, on appeal,
she has not disputed the factual accuracy of the representation, to which she agreed
below, that the amount of drugs she imported exceeded 500 grams. Accordingly,
the district court’s base offense level determination was not a Sixth Amendment
constitutional error under Booker. Cf. United States v. Shelton, 400 F.3d 1325,
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1329-30 (11th Cir. 2005) (under plain error review, finding no Sixth Amendment
violation under Booker where defendant’s sentencing enhancements were based on
either prior convictions or facts that were admitted by the defendant).1
As for Booker non-constitutional, or statutory, error, we have held that even
when there is no Booker constitutional error, there is still a “Booker error . . . when
the district court misapplies the Guidelines by considering them as binding as
opposed to advisory.” Id. at 1330-31. Navarro-Lenis argues the district court erred
by sentencing her under the mandatory guidelines. The government concedes that a
limited remand is appropriate because it cannot satisfy its burden to establish
harmlessness. The government highlights, as support for its agreement to a limited
remand, that the district court commented that Navarro-Lenis’s ultimately
unsuccessful argument for a minor-role reduction was “one of the more compelling
argument I have gotten.” The government also notes that the district court said,
after the foregoing observation about the minor-role reduction, that it was
sentencing Navarro-Lenis at the “lowest end of the guidelines range.” On this
record, the government cannot meet its burden to show that the Booker non-
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We also find no violation of the Fifth Amendment. In United States v. Cotton, the
Supreme Court held that the enhancement of a sentence above the statutory maximum on the basis
of a fact not alleged in the indictment violates the Fifth Amendment. 535 U.S. 625, 632, 122 S. Ct
1781, 1785 (2002). Navarro-Lenis’s 46-month sentence was well within the 40-year maximum term
of imprisonment under 21 U.S.C. § § 952(a), 960(b)(2(A). Because the district court did not
sentence this defendant beyond the statutory maximum, it did not commit Fifth Amendment error.
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constitutional error did not affect, or had a very slight effect on, Navarro-Lenis’s
sentence. Therefore, we vacate and remand Navarro-Lenis’s sentence for
resentencing consistent with Booker.
VACATED AND REMANDED.
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