FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 29, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-10433

Non-Argument Calendar

________________________

D. C. Docket No. 04-00096-CR-WS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

RICO RESEAN HUBBARD, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(August 29, 2005)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

Rico Resean Hubbard appeals his 92-month sentence, imposed after he pled
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guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). On appeal, Hubbard argues that: (1) § 922(g) attempts to regulate

non-economic intrastate criminal activity, and is, therefore, unconstitutional under

the Commerce Clause; and (2) he was sentenced in violation of United States v.

Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), because the

district court enhanced his sentence based upon facts not charged in the indictment

or admitted by him, pursuant to a mandatory sentencing scheme. 

We review constitutional challenges to statutes de novo. See United States

v. Dupree, 258 F.3d 1258 (11th Cir. 2001). Hubbard preserved his Booker error by

objecting, based on Blakely v. Washington, 542 U.S. ___, 124 S. Ct 2531, 159 L.

Ed. 2d 403 (2004), at sentencing. See United States v. Mathenia, 409 F.3d 1289,

1291 (11th Cir. 2005) (holding that appellant properly preserved Booker claim by

citing Blakely in his written objections to the PSI and reminding the court at

sentencing of his Blakely objection). Accordingly, he is entitled to preserved error

review, meaning that we review his claim de novo, but will reverse only for

harmful error. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)

(citation omitted). “‘To find harmless error, we must determine that the error did

not affect the substantial rights of the parties.’” Id. (quoting United States v.

Hernandez, 160 F.3d 661, 670 (11th Cir. 1998)). “The burden is on the
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government to show that the error did not affect the defendant’s substantial rights.”

Id. (citing United States v. Olano, 507 U.S. 725, 741, 113 S. Ct. 1770, 1781, 123 L.

Ed. 2d 508 (1993)).

Upon thorough review of the record, as well as careful consideration of the

parties’ briefs, we affirm Hubbard’s conviction, but find Booker constitutional

error that the government cannot establish was harmless. We therefore vacate and

remand his sentence for resentencing consistent with Booker.

The relevant facts are these. On May 27, 2004, Hubbard was indicted for

one count of possession of a firearm by a convicted felon, in violation of §

922(g)(1). Without the benefit of a plea agreement, Hubbard entered a plea of

guilty to the crime charged. Hubbard also filed a “factual resume,” in which he

admitted the facts necessary to support his guilty plea, including the following: (1)

on May 16, 1995, he was convicted, in Alabama state court, of attempted seconddegree burglary, which is a felony crime punishable by a term of imprisonment

exceeding one year, and (2) on July 17, 2003, he knowingly possessed a Ruger,

9mm caliber, semi-automatic handgun. He also stipulated “that [the Ruger] was

manufactured outside the State of Alabama and therefore affected commerce by its

importation into the State of Alabama.” Hubbard then proceeded to sentencing.
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According to the presentence investigation report (“PSI”), Hubbard’s base

offense level was 24, pursuant to U.S.S.G. 2K2.1(a)(2)(A). The PSI recommended

the following adjustments: (1) a 2-level upward adjustment for engaging in

reckless endangerment during flight from law enforcement, U.S.S.G. § 3C1.2; (2) a

2-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a); and (3) a 1-

level reduction for Hubbard’s timely entry of a guilty plea, U.S.S.G. § 3E1.1(b).

With an adjusted offense level of 23 and a criminal history category of VI (based

on 14 criminal history points), his Sentencing Guidelines range was 92 to 115

months’ imprisonment. 

Hubbard objected to the 2-level enhancement under § 3C1.2, arguing that

the adjustment was not warranted based on the police report, which indicated that

Hubbard stopped his vehicle after only a “brief vehicle pursuit.” Hubbard also

argued that enhancement was improper based on Blakely.

At the sentencing hearing, in support of the § 3C1.2 enhancement, the

government presented the testimony of Officer Raymond Cook, of the Mobile

Police Department, who was responsible for stopping Hubbard’s vehicle prior to

his arrest. Officer Cook described that after he turned on the blue lights of his

marked car, Hubbard increased the speed of his vehicle. Officer Cook pursued

Hubbard through a residential area for about a minute and a half, during which
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Hubbard drove approximately 15 miles per hour faster than the posted speed limit

of 30 miles per hour, ran stop signs without slowing down, and drove in opposing

traffic lanes, despite the presence of other traffic on the road. After Hubbard

pulled his vehicle over, Hubbard got out and ran away. Officer Cook chased him

and eventually arrested him.

After Officer Cook’s testimony, Hubbard noted that, during the chase, he did

not travel at “an excessive rate of speed,” and highlighted Officer Cook’s

testimony that no near collisions occurred. Hubbard argued that the facts did not

establish that he “recklessly created a substantial risk of death or serious bodily

injury.” The district court disagreed, noting that the “evidence [was] more than

adequate to supply the elements of reckless endangerment during flight,” and ruled

the two-level enhancement, under § 3C1.2, was warranted. Hubbard also reiterated

his Blakely argument, but the district court overruled the objection, finding that

Blakely was not applicable, pursuant to this Court’s controlling precedent. 

The district court adopted the PSI’s sentencing calculations and sentenced

Hubbard to 92 months of imprisonment and 3 years of supervised release. This

appeal followed.
Section 922(g)(1) makes it unlawful for any person: 1

who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year . . . to ship or

transport in interstate or foreign commerce, or possess in or

affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in

interstate or foreign commerce. 

 18 U.S.C. 922(g)(1).

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As for Hubbard’s constitutional challenge to § 922(g)(1), he recognizes that 1

we squarely rejected his argument in Dupree, in which we held that a defendant’s

possession of a firearm that traveled in interstate commerce (facts that Hubbard

admitted in this case) is sufficient to satisfy the commerce element of the statute

and comply with the Commerce Clause. See 258 F.3d 1260; see also United States

v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996) (rejecting argument that Congress

exceeded its authority, under the Commerce Clause, by enacting § 922(g)(1);

noting that the felon-in-possession statute has an express jurisdictional element,

which would ensure that the firearm possession in question affects interstate

commerce)); cf. United States v. Ballinger, 395 F.3d 1218 (11th Cir.) (en banc)

(rejecting facial and as-applied challenges, based on the Commerce Clause, to 18

U.S.C. § 247, pursuant to the “approach this Circuit has repeatedly taken to the

nearly identical language found in § 922(g)”), pet. for cert. filed, No. 04-9627

(Apr. 7, 2005). 
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Where a panel of this Court has addressed an issue of law, “each succeeding

panel is bound by the holding of the first panel to address the issue of law, unless

and until that holding is overruled en banc, or by the Supreme Court.” United

States v. Hogan, 986 F.2d 1364, 1369 (1993). Under our uniform line of

controlling precedent, § 922(g) is a constitutional exercise of Congress’s

Commerce Clause power. Hubbard’s admission, in the factual resume he filed,

that he possessed a gun that had traveled in interstate commerce was sufficient to

demonstrate the required nexus to interstate commerce. Accordingly, we affirm

Hubbard’s conviction. 

As for Hubbard’s Booker claim, the Sixth Amendment right to trial by jury

is violated where, under a mandatory Guidelines system, a sentence is increased

because of an enhancement based on facts found by the judge that were neither

admitted by the defendant nor found by the jury. Booker, 543 U.S. ___, 125 S. Ct.

at 749-56 (2005). The Booker constitutional error is the use of extra-verdict

enhancements to reach a Guidelines result that is binding on the sentencing judge.

United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). The Booker

non-constitutional, or statutory, error occurs when the district court sentences a

defendant under a mandatory sentencing scheme, even in the absence of a Sixth

Amendment enhancement violation. Id. This case concerns both types of error.
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The district court committed Booker constitutional error by sentencing Hubbard on

the basis of facts (reckless endangerment during flight) not alleged in the

indictment or admitted by him as part of his plea and statutory error by applying

the guidelines in a mandatory fashion. 

A constitutional error is harmless if the government can show that “it is clear

beyond a reasonable doubt that the error complained of did not contribute to the

sentence obtained.” Paz, 405 F.3d at 948 (quotation and alteration omitted).

Based on our careful review of the record, with particular attention to the

sentencing transcript, we can find no indication of whether or not the district court

would have sentenced Hubbard similarly under an advisory scheme. Moreover,

Hubbard was sentenced to the low end of the Guidelines range. On this record, the

government cannot show that the error was harmless. Accordingly, we vacate

Hubbard’s sentence and remand his case to the district court for resentencing

consistent with Booker.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.