FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 31, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-15552

Non-Argument Calendar

________________________

D.C. Docket No. 04-80082-CR-DTKH

UNITED STATES OF AMERICA,

 Plaintiff-Appellee, 

versus

VIVIANE ALADIN,

 Defendant-Appellant.

__________________________

Appeal from the United States District Court 

for the Southern District of Florida

_________________________

 (May 31, 2005)

Before TJOFLAT, DUBINA, and MARCUS, Circuit Judges.

PER CURIAM:

Viviane Aladin appeals her 24-month sentence for illegally re-entering the

United States after previous deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2).

Aladin argues that the district court erred by applying a 12-level enhancement,
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pursuant to U.S.S.G. § 2L1.2(b)(1)(B), based on her prior conviction for a drug

trafficking offense, when the prior conviction was neither presented to a jury nor

admitted by her, in violation of Blakely v. Washington, 542 U.S. ___, 124 S. Ct.

2531, 159 L. Ed. 2d 403 (2004), and United States v. Booker, 543 U.S. ___, 125 S.

Ct. 738, 160 L. Ed. 2d 261 (2005). Aladin also argues that the district court

committed reversible error by treating the Sentencing Guidelines as mandatory, in

violation of Booker. The government concedes that the district court committed

Booker non-constitutional error by applying the Guidelines as mandatory and states

that remand for resentencing is appropriate because the district court did not indicate

whether it would impose the same sentence if the Guidelines were advisory in nature.

Aladin raised her arguments in the district court and therefore is entitled to de

novo review. United States v. Paz, --- F.3d ---, 2005 WL 757876, *2 (11th Cir. Apr.

5, 2005). We will reverse a Booker error only if the error was harmful, meaning that

the error affected substantial rights. Id. The government bears the burden of

establishing that an error did not affect a defendant’s substantial rights. Id.

As a preliminary matter, we easily dispense with Aladin’s argument that her

case presents a Booker constitutional error because the district court enhanced her

sentence for a prior drug-trafficking conviction, when the prior conviction was

neither presented to a jury nor admitted by her. In Booker, the Supreme Court held
3

that the mandatory nature of the Guidelines rendered them incompatible with the

Sixth Amendment’s right to a jury trial. See 543 U.S. __, 125 S. Ct. at 749-50.

“[T]he Court left undisturbed its holding in Almendarez-Torres v. United States, that

recidivism is not a separate element of an offense that the government is required to

prove beyond a reasonable doubt.” United States v. Orduno-Mireles, --- F.3d ---,

2005 WL 768134 (11th Cir. Apr. 6, 2005) (citing Almendarez-Torres v. United

States, 523 U.S. 224, 247, 118 S. Ct. 1219, 1233, 140 L. Ed. 2d 350 (1998)). “Any

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 admitted by the defendant or proved to a jury beyond a reasonable

doubt.” Booker, 125 S. Ct. at 756 (emphasis added). 

 “The reason for the exception for prior convictions is clear:‘a prior conviction

must itself have been established through procedures satisfying the fair notice,

reasonable doubt, and jury trial guarantees.’” Orduno-Mireles, 2005 WL 768134

(quoting Jones v. United States, 526 U.S. 227, 249, 119 S. Ct. 1215, 1227, 143 L. Ed.

2d 311 (1999)). Simply put, there is no Sixth Amendment violation when a

defendant’s sentence is enhanced based on a prior conviction. “[B]ecause the priorconviction exception remains undisturbed after Booker, a district court does not err

by relying on prior convictions to enhance a defendant’s sentence.” Id.; see also
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United States v. Camacho-Ibarquen, 404 F.3d 1283, 1290 (11th Cir. 2005) (holding

that, pursuant to Almendarez-Torres, “the government need not allege in its

indictment and need not prove beyond a reasonable doubt that a defendant had prior

convictions for a district court to use those convictions for purposes of enhancing a

sentence”); United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005) (holding

that the Supreme Court’s decision in Almendarez-Torres “was left undisturbed by

Apprendi, Blakely, and Booker,” and that “a district court does not err by relying on

prior convictions to enhance a defendant’s sentence”). 

However, as conceded by the government, Aladin is right that there was

Booker non-constitutional error, based on the remedial holding of the case, because

the district court treated the Guidelines range as mandatory and “the Supreme Court

has now excised the mandatory nature of the Guidelines in Booker.” Shelton, 400

F.3d at 1330 (reviewing Booker claim for plain error). In Shelton, we concluded that

“it was Booker error for the district court to sentence Shelton under a mandatory

Guidelines scheme, even in the absence of a Sixth Amendment enhancement

violation.” Id. (citation omitted). “As a result of Booker’s remedial holding, Booker

error exists when the district court misapplies the Guidelines by considering them as

binding as opposed to advisory.” Id. at 1331. 
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“In cases involving preserved Booker error, the Government must show that

the mandatory, as opposed to the advisory, application of the guidelines did not

contribute to the defendant’ssentence.” United States v. Davis, --- F.3d ---, 2005 WL

1033422, *1 (11th Cir. May 4, 2005) (citing Paz, 2005 WL 757876 at *2). A

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

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

effect.” United States v. Hornaday, 392 F.3d 1306, 1315 (11th Cir. 2004) (internal

quotation marks and citations omitted). “If one can say ‘with fair assurance . . . that

the judgment was not substantially swayed by the error,’ the judgment is due to be

affirmed even though there was error.” Id. (quoting Kotteakos v. United States, 328

U.S. 750, 764 66 S. Ct. 1239, 1248, 90 L. Ed. 1557 (1946)); see also United States

v. Frazier, 387 F.3d 1244, 1266 n.20 (11th Cir. 2004) (en banc) (“Errors do affect a

substantial right of a party if they have a ‘substantial influence’ on the outcome of a

case or leave ‘grave doubt’ as to whether they affected the outcome of a case.”

(quoting Kotteakos, 328 U.S. at 764-65, 66 S. Ct. at 1248)).

Here, the record does not indicate whether or not the district court would have

given Aladin the same sentence under an advisory scheme. Moreover, the

government concedes that the district court’s error was not harmless, and thus cannot

meet its burden of showing that the error did not affect Aladin’s substantial rights.
We note that in this case, the district court correctly determined the Guidelines range for 1

Aladin’s conviction. On remand, pursuant to Booker, the district court is required to sentence Aladin

under an advisory Guidelines scheme, and, in so doing, must consider the Guidelines range and

“other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).” Booker, 125 S. Ct. at

757.

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See Davis, 2005 WL 1033422, *2 (“We simply do not know what the sentencing

court would have done had it understood the guidelines to be advisory rather than

mandatory, and had properly considered the factors in 18 U.S.C. § 3553(a).

Therefore, the Government cannot meet its burden of showing that the district court’s

erroneous application of the Guidelines as mandatory was harmless beyond a

reasonable doubt.”). 

Accordingly, we vacate Aladin’s sentence and remand for resentencing

consistent with Booker.1

VACATED AND REMANDED.