FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 11, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-14777

Non-Argument Calendar

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D. C. Docket No. 04-20092-CR-MGC

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

versus 

ARMANDO LORENZO, 

Defendant-Appellee. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 11, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

The United States appeals Armando Lorenzo’s eight-month sentence
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imposed after Lorenzo pleaded guilty to possession of Device-Making Equipment

with the intent to defraud, in violation of 18 U.S.C. § 1029(a)(4). The government

argues that in light of United States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005),

the district court committed reversible error in applying the Sentencing Guidelines

as mandatory. The government further contends that the district court failed to

correctly calculate the advisory guidelines range by not applying an enhancement

based upon a loss amount found by the district court but not charged in the

indictment or admitted to by the defendant. 

The government properly preserved its Booker error claim by raising an

objection to the district court’s application of Blakely at sentencing. See United

States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (holding that appellant

properly preserved Booker error claim by citing Blakely in his written objection to

the presentence investigation report and reminding the court at sentencing of his

Blakely objection). 

“We review questions of law arising under the Sentencing Guidelines de

novo.” United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). 

Deciding whether a factor is a permissible grounds on which to upwardly or

downwardly depart from the Sentencing Guidelines is a question of law. See

United States v. Kim, 364 F.3d 1235, 1239-40 (11th Cir. 2004).
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Booker does not alter our review of the application of the Guidelines. 

Crawford, 407 F.3d at 1178. The Supreme Court concluded in Booker that the

district court must still consider the Sentencing Guidelines in correctly determining

a defendant’s sentence. Booker, 125 S. Ct. at 765. Further, district courts, postBooker, have the obligation to correctly calculate the Guidelines range. “After [the

district court] has made this calculation, [and considers other factors as set forth in

18 U.S.C. § 3553, it] may impose a more severe or more lenient sentence as long

as the sentence is reasonable.” Crawford, 407 F.3d at 1178, citing Booker 125 S.

Ct. at 767. 

In the instant case, the district court indicated its desire to factor the amount

of loss into the determination of the appropriate Guidelines range and thus

sentence Lorenzo within a higher range. However, the district court did not use

this factor to enhance Lorenzo’s sentence because the district court considered it

prohibited under Blakely. Crawford indicates that the district court was able to and

should have taken into consideration the loss amount that resulted from Lorenzo’s

criminal acts in correctly calculating Lorenzo’s sentence. Crawford, 407 F.3d at

1178.

Determining the correct Sentencing Guideline range remains a crucial

obligation of the district court post-Booker. In this case, the district court failed to
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consider the correct Guidelines range in determining Lorenzo’s sentence. The

error was not harmless because the court’s comments make it clear that had it

considered the correct sentencing range, the sentence would have been higher. 

Accordingly, we vacate Lorenzo’s sentence and remand the case to the district

court for resentencing. 

SENTENCE VACATED AND REMANDED