FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 1, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-15984

Non-Argument Calendar

________________________

D. C. Docket No. 04-00040-CR-FTM-29-SPC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

SAM HARRIS, JR., 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(November 1, 2005)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

Sam Harris, Jr. appeals his conviction and 110-month sentence for being a
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felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On appeal,

Harris argues that the district court committed error in light of the Supreme Court’s

decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), when it enhanced his sentence based on judicially found facts under a

mandatory guidelines system. The government responds that Harris waived his

right to challenge his sentence if the sentencing guidelines were found to be

unconstitutional. Harris also claims that the statute under which he was convicted,

18 U.S.C. § 922(g), is unconstitutional. 

We review the question of whether a defendant has waived his right to

appeal his sentence de novo. United States v. Benitez-Zapata, 131 F.3d 1444, 1446

(11th Cir. 1997). To be enforceable, an appeal waiver must show that the

defendant knows what his rights are and understands what he is giving up. United

States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). Absent such a showing in

the record, an appeal waiver is not valid as it is not knowing and voluntary. Id. at

1353.

In this case, Harris and the government both expressed an understanding at

the change of plea hearing that the sentence appeal waiver did not preclude Harris

from challenging a sentence if the guidelines were found unconstitutional. While

the written language of Harris’s appeal waiver stated he waived the right to appeal
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his sentence, “directly or collaterally, on any ground,” we will not interpret that

language to directly contradict the oral agreement expressed to the district court. 

Jeffries, 908 F.2d at 1523. To hold otherwise would force Harris into a plea

agreement in which he did not understand which rights were given up. The record

shows that Harris was told, and so understood, he had preserved his rights to

appeal a sentence should the guidelines be unconstitutional. An appeal waiver that

states a contrary conclusion is not enforceable. Allen, 151 F.3d 669. 

Consequently, Harris has not waived his right to appeal his sentence under Booker.

Harris next argues that the district court erred in light of the Supreme

Court’s decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005), when it enhanced his sentence based on judicially found facts

under a mandatory guidelines system. 

Harris timely made an objection under Blakely v. Washington, 542 U.S.

296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in the district court. We thus review

his Blakely/Booker claim on appeal de novo, but reverse only for harmful error. 

United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (citation omitted). There

are two harmless error standards; one is applicable to Booker constitutional errors,

and the other to Booker statutory errors. United States v. Mathenia, 409 F.3d

1289, 1291(11th Cir. 2005). 
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“[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 non-constitutional error test. Id. at 1292. Under this

test, a non-constitutional error is harmless if, when the proceedings are viewed in

their entirety, “one can say ‘with fair assurance ... that the [sentence] was not

substantially swayed by the error.’” Id.(citations omitted). 

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. However, where a defendant

admits the facts that enhance his sentence, there is no Sixth Amendment violation

under Booker. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).

In this case, Harris admitted all the facts that were used to factor his sentence

enhancement. As a result, there is no Sixth Amendment violation. However, the

district court erred in sentencing Harris under a mandatory guidelines system. 

Shelton, 400 F.3d at 1330-31. Accordingly, we must determine whether the

government has met its burden to show that the court was not substantially swayed

by the error. Mathenia, 409 F.3d at 1292. In this case, the government did not
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address its burden and could not meet it in any case. A close review of the

sentencing transcript shows that the record is ambiguous as to what sentence the

district court would have imposed had it applied the guidelines in an advisory

manner. Accordingly, because “[w]e simply do not know what the sentencing

court would have done,” the government cannot meet its burden to show that the

error was harmless. United States v. Davis, 407 F.3d 1269, 1271. Accordingly,

we vacate and remand Harris’s sentence for resentencing consistent with Booker.

Finally, for the first time on appeal, Harris argues that his conviction should

be overturned because the statute under which he was convicted, 18 U.S.C. §

922(g), is unconstitutional. Harris relies on United States v. Maxwell, 386 F.3d

1042 (11th Cir. 2004), to support his contention. Although we generally review

constitutional issues de novo, it is within our discretion whether to address a

constitutional issue when it has been raised for the first time on appeal. United

States v. Wright, 392 F.3d 1269, 1280 (11th Cir. 2004), cert. denied, (125 S.Ct.

1751 (2005). When an issue is raised for the first time on appeal, this Court

reviews the argument for plain error. United States v. Hall, 314 F.3d 565, 566

(11th Cir. 2002). “Plain error occurs where (1) there is an error; (2) that is plain or

obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial

and not harmless; and (4) that seriously affects the fairness, integrity, or public
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reputation of the judicial proceedings.” Id. (citation omitted). There can be no

plain error where there is no precedent from the Supreme Court or this Court

directly resolving an issue. United States v. Lejarde-Rada, 319 F.3d 1288, 1291

(11th. Cir. 2003).

We find that our decision in United States v. Wright, 392 F.3d 1269 (11th

Cir. 2004), decided after Maxwell, controls this case. In Wright, the defendant

challenged the constitutionality of § 922(g), asserting grounds very similar to those

we decided in Maxwell. Id. at 1280. We stated that we had previously rejected the

same argument and had consistently upheld § 922(g)’s constitutionality. Id. We

also noted that we could not and would not overrule prior precedent, as only the

Supreme Court or this Court sitting en banc could do so. Id. We therefore

affirmed Wright’s convictions. Id. at 1281. Considering the precedent that has

consistently held that § 922(g) is constitutional, the district court did not commit

plain error. Accordingly, Harris’s conviction is affirmed.

CONVICTION AFFIRMED; SENTENCE VACATED AND

REMANDED FOR RESENTENCING.