FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 February 9, 2006 

 THOMAS K. KAHN 

 CLERK

 Honorable Anne C. Conway, United States District Judge for the Middle District of *

Florida, sitting by designation.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-15129

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D. C. Docket No. 02-20827-CR-CMA

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ANGEL RAFAEL MARISCAL, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 9, 2006)

Before BARKETT and WILSON, Circuit Judges, and CONWAY , District Judge. *

PER CURIAM:
 18 U.S.C. § 3061 provides, in pertinent part, as follows: 1

(a) Subject to subsection (b) of this section, Postal Inspectors and other agents of the

United States Postal Service designated by the Board of Governors to investigate

criminal matters related to the Postal Service and the mails may– 

(1) serve warrants and subpoenas issued under the authority of the United States 

. . .

(b) The powers granted by subsection (a) of this section shall be exercised only– 

(1) in the enforcement of laws regarding property in the custody of the Postal

Service, property of the Postal Service, the use of the mails, and other postal

offenses; and

(2) to the extent authorized by the Attorney General pursuant to agreement

between the Attorney General and the Postal Service, in the enforcement of other

laws of the United States, if the Attorney General determines that violations of

such laws have a detrimental effect upon the operations of the Postal Service

2

Angel Rafael Mariscal appeals his conviction and cumulative 100 year

sentence for seven child pornography counts in violation of 18 U.S.C. § 2251(a),

2260(a), 2251(c)(1)(A), 2251(d), 2252A(a)(1), 2252A(b)(1), and 2252A(a)(4)(B). 

On appeal, Mariscal argues that the district court erred in denying his motion to

suppress evidence and in sentencing him beyond his base guideline offense based

on the government’s request for upwards departures. 

In regard to his motion to suppress, Mariscal argues that the Postal

Inspectors who obtained the search warrant in this case lacked the statutory

authority for a warrant because 18 U.S.C. § 3061 limits the authority of Postal 1

inspectors to serve warrants only to investigations pertaining to the “use of the

mails” and does not apply to Federal Express packages. We affirm because there is

no question that there existed sufficient evidence that Mariscal was using both the
3

U.S. mail as well as private carriers to transmit child pornography. 

With regard to his sentence, Mariscal argues that the district judge erred in

sentencing him beyond his base guideline offense. Because Mariscal preserved his

Blakely/Booker claim at sentencing, we review for harmless error. United States v.

Petho, 409 F.3d 1277, 1279 (11th Cir. 2005). As we have previously stated,

“non-constitutional error is harmless if, viewing the proceedings in their entirety, a

court determines that the error did not affect the [sentence], ‘or had but very slight

effect.’” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (citation

omitted). 

Here, the sentencing judge announced an identical alternative sentence as

follows: “[i]n the event that my reliance on the Sentencing Guidelines was

erroneous, then as a second alternate sentence to be included in the record, my

sentence as to each of these counts, Counts I through VII, would have been the

statutory maximum.” Consequently, we find any error in sentencing to have been

harmless. See Petho, 409 F.3d at 1280 (finding harmless error in sentence of 37

months when judge noted that “the sentence I'm going to impose of 37 months is

the same sentence that I would impose if Blakely were applied to the Federal

Sentencing Guidelines so that the guidelines were non-binding”). 

AFFIRMED.