FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 6, 2005

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-14865

Non-Argument Calendar

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D.C. Docket No. 04-20107-CR-UUB

UNITED STATES OF AMERICA,

 

 Plaintiff-Appellee, 

versus

LUIS GUSTAVO ANDINO,

 Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida 

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(September 6, 2005)

Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit

Judges.
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PER CURIAM:

Luis Gustavo Andino appeals his 70-month sentence, imposed after he pled

guilty to illegal reentry of a previously deported alien, in violation of 8 U.S.C.

§ 1326(a), (b)(2). Reversible error exists under United States v. Booker, 125 S.Ct.

738 (2005); we vacate Andino’s sentence and remand for resentencing consistent

with Booker.

We initially address Andino’s argument that the district court erred in

applying a 16-level enhancement for being deported after a felony conviction of a

“crime of violence”, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his prior

Florida state conviction for robbery. Andino contends that a conflict exists

between the definitions of a “crime of violence” under § 2L1.2(b)(1)(A)(ii) and

under the immigration statutes: he claims that the statutory definition controls. 

We review de novo a district court’s interpretation of criminal statutes and

sentencing guidelines. United States v. Krawczak, 331 F.3d 1302, 1305 (11th Cir.

2003). 

We conclude that the district court properly applied the enhancement under

§ 2L1.2(b)(1)(A)(ii). This guideline requires a 16-level enhancement if the
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defendant previously was deported after a conviction for a felony that is a “crime

of violence.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii). Under Florida law, robbery is a

second degree felony punishable by up to 15 years’ imprisonment. See Fla. Stat.

Ann. §§ 812.13(2)(c), 775.082(3)(c). Thus, under the guidelines and the

accompanying commentary, Andino’s conviction for robbery qualifies as a felony

“crime of violence” that triggers the 16-level enhancement. See U.S.S.G. § 2L1.2,

comments. (n.1(B)(iii) and 2). 

And we reject Andino’s claim about the conflict between the guidelines and

the immigration statutes. The immigration statutes provide a base maximum twoyear prison sentence for illegal reentry of a deported alien. 8 U.S.C. § 1326(a). 

But § 1326(b)(1) allows a maximum ten-year sentence if the deportation was

subsequent to a conviction for three or more misdemeanors involving drugs,

crimes against the person, or a felony (other than an aggravated felony). And

§ 1326(b)(2) allows a maximum twenty-year sentence if the deportation was

subsequent to a conviction for an “aggravated felony.” An “aggravated felony”

includes a “crime of violence” for which the term of imprisonment actually

imposed is at least one year. See 8 U.S.C. § 1101(a)(43)(F); United States v.

Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000).
We also note that the PSI indicates that Andino has at least three prior misdemeanor drug

1

convictions. These convictions also expose Andino to § 1326(b)(1)’s maximum ten-year sentence.

4

No one disputes that a robbery is a crime of violence. See 18 U.S.C. § 16. 

But Andino was sentenced only to 364 days’ imprisonment for the Florida

robbery. Because his actual sentence was less than one year, he contends that his

robbery conviction does not qualify as an “aggravated felony” under § 1326(b)(2)

that would expose him to the maximum 20-year sentence. To the extent that the

district court adopted the statement in the presentence investigation report (PSI)

that Andino was subject to a 20-year maximum sentence under § 1326(b)(2), an

error occurred. 

But it is an error that does not mean much. Andino argues that the guideline

definition for a “crime of violence”, which includes any robbery, regardless of the

sentence actually imposed, conflicts with the statutory definition of a “crime of

violence” that qualifies as an “aggravated felony”. Andino’s robbery conviction --

while not a “crime of violence” that qualifies as an “aggravated felony” under the

immigration statutes -- does qualify as a felony that exposes Andino to a ten-year

maximum sentence under § 1326(b)(1). This ten-year maximum sentence is more 1

than Andino’s guideline sentencing range of 70 to 87 months’ imprisonment after
 We need not hypothesize about whether a situation could arise with the conflict Andino asserts.

2

We are aware that the definitions of “crime of violence” under U.S.S.G. § 2L1.2 and 8 U.S.C.

§ 1101(a)(43)(F) differ: the latter requires that the sentence actually imposed be at least one year, and

the former requires only that the conviction be punishable by a term of imprisonment in excess of

one year. But the definition of a “crime of violence” that is an “aggravated felony” under

§ 1101(a)(43)(F) applies to the determination of a maximum possible sentence for a violation of

§ 1326(a): this definition does not apply to § 2L1.2, which unambiguously defines a “crime of

violence” in its commentary.

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applying the 16-level enhancement. Under these facts, we discern no conflict

between the application of 8 U.S.C. § 1326 and U.S.S.G. § 2L1.2.2

Andino also argues that, under Blakely v. Washington, 124 S.Ct. 2531

(2004), the district court violated his Fifth and Sixth Amendment rights when it

enhanced his sentence based on the fact of his prior conviction, which was not

charged in the indictment, not proved to a jury beyond a reasonable doubt, and not 

admitted by him. 

Andino properly raised his Blakely/Booker claim in the district court. See

United States v. Dowling, 403 F.3d 1242, 1245 (11th Cir. 2005). We review this

issue de novo; we will reverse unless the government shows that any error was

harmless. See United States v. Robles, 408 F.3d 1324, 1327 (11th Cir. 2005).

Andino’s 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) was

based solely on the fact that he had a previous conviction. In Almendarez-Torres

v. United States, 118 S.Ct. 1219 (1998), the Supreme court stated that the

government need not allege in the indictment and need not prove beyond a
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reasonable doubt that a defendant had a prior conviction for a district court to use

that conviction to enhance a sentence. “This conclusion was left undisturbed by

Apprendi, Blakely, and Booker.” United States v. Shelton, 400 F.3d 1325, 1329

(11th Cir. 2005). Thus, the district court did not violate Andino’s constitutional

rights by applying the § 2L1.2(b)(1)(A)(ii) enhancement based on his prior

conviction. See United States v. Gallegos-Aguero, 409 F.3d 1274, 1276-77 (11th

Cir. 2005).

But the district court did commit a statutory error under Booker. See United

States v. Dacus, 408 F.3d 686, 688 (11th Cir. 2005) (under Booker, two types of

sentencing errors exist: “one is constitutional and the other is statutory”). The

statutory error occurs when the district court sentences a defendant “under a

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

enhancement violation.” Shelton, 400 F.3d at 1330-31. Booker statutory errors

are subject to a less demanding harmless error test that is applicable to nonconstitutional errors. See United States v. Mathenia, 409 F.3d 1289, 1292 (11th

Cir. 2005). That standard requires us to determine whether the error either did not

affect the sentence or only had a slight effect. Id.

Here, the government has failed to demonstrate that the district court’s

statutory error of applying the guidelines in a mandatory fashion did not have an
 Just before Andino was sentenced and before the Supreme Court decided Booker, we declined 3

to apply the principles set out in Blakely to the sentencing guidelines. United States v. Reese, 382

F.3d 1308 (11th Cir. 2004), vacated, 125 S.Ct. 1089 (2005).

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affect on the sentence Andino received. In rejecting Andino’s Blakely claim, the

district court stated “we don’t need to deal with [the Blakely objection] anymore

since it’s simply overruled by the Eleventh Circuit’s decision.” The district court 3

made no statement that it would have imposed an identical sentence if it had been

proceeding under an advisory guidelines system. The court merely sentenced

Andino at the low end of the guideline range without commenting on whether the

guidelines sentence was appropriate under the circumstances. 

In sum, although the district court properly applied the 16-level

enhancement under § 2L1.2(b)(1)(A)(ii), Andino must be resentenced under the

advisory guidelines system in accordance with Booker.

VACATED and REMANDED.