FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 March 7, 2006 

 THOMAS K. KAHN 

 CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-15227

Non-Argument Calendar

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D.C. Docket No. 03-20641-CR-AJ

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee, 

versus

CHRISTOPHER WILSON,

a.k.a. Chris Lawrence Cridland,

a.k.a. Cris Cridland, et al.,

 Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida 

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(March 7, 2006)

Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
 Booker was decided by the Supreme Court after Defendant was sentenced. At sentencing,

1

Defendant raised his constitutional claims based on Blakely v. Washington, 124 S.Ct. 2531 (2004).

Because the Booker decision applies to all cases on direct review, we apply Booker to this appeal.

Booker, 125 S.Ct. at 769.

 Guideline calculations were done under the 2002 Guidelines Manual. 2

2

Defendant-Appellant Christopher Wilson appeals the 72-month sentence

imposed upon his conviction for conspiracy to commit bank and mail fraud, in

violation of 18 U.S.C. § 371; bank fraud, in violation of 18 U.S.C. §§ 1344 and 2;

and mail fraud, in violation of 18 U.S.C. §§ 1341 and 2. Defendant contends that

the sentence imposed violated his constitutional and statutory rights under Booker

v. United States, 125 S.Ct. 738 (2005). We vacate and remand for resentencing.

1

Defendants constitutional claims were raised timely in the district court and,

as such, preserved for our review. Defendant argues that his Sixth Amendment

rights were violated when the district court determined that (i) the amount of loss

exceeded $1,000,000 (qualifying him for a 16-level offense enhancement under

U.S.S.G. § 2B1.1(b)(1)(I)) ; (ii) the offense involved 10 or more victims 2

(qualifying him for a 2-level offense enhancement under U.S.S.G. §

2B1.1(b)(2)(A)(i); and (iii) the offense involved sophisticated means (qualifying

him for a two-level offense enhancement under U.S.S.G. § 2B1.1(b)(8)(C)). 

We doubt that Defendant suffered a violation of his Sixth Amendment

rights. About the first two enhancements (loss amount and number of victims),
3

Defendant contested no facts supporting those enhancements. A defendant’s

failure to dispute facts set out in the PSI or recited at the plea colloquy operates as

an admission of those facts for Booker purposes. See United States v. Shelton,

400 F.3d 1325, 1330 (11 Cir. 2005) (concluding that sentence enhancement

th

based on drug quantity not violative of Booker where defendant failed to dispute

facts in the PSI). A sentencing enhancement based on admitted facts has no Sixth

Amendment implications under Booker. Id. About the sophisticated-means

enhancement, Defendant never contested the facts underlying the enhancement;

instead, he argued that application of the sophisticated-means enhancement was

improper in the light of the facts of the case. The district court’s conclusion that

the offense involved sophisticated means involved the application of law to

relevant admitted facts, see United States v. Petho, 409 F.3d 1277, 1279-80 n.1

(11 Cir. 2005); no constitutional Booker principle was implicated by the th

imposition of a sophisticated-means enhancement.

Although the district court committed no constitutional Booker error,

statutory Booker error occurs when the sentencing court misapplies the guidelines

by considering them as binding “even in the absence of a Sixth Amendment

enhancement violation.” Shelton, 400 F.3d at 1330-31. Statutory Booker error

requires reversal “only if [the error] resulted in actual prejudice because it had
4

substantial and injurious effect or influence in determining the [result].” United

States v. Gallegos-Aguero, 409 F.3d 1274, 1277 (11 Cir. 2005) (quoting United th

States v. Guzman, 167 F.3d 1350, 1353 (11 Cir. 1999)). The government bears th

the burden to show the absence of effect of the statutory error on the defendant’s

substantial rights. United States v. Mathenia, 409 F.3d 1289, 1291 (11 Cir. th

2005). A sentence is due to be affirmed if it can be said “‘with fair assurance ...

that the [sentence] was not substantially swayed by the error.’” Id. (quoting United

States v. Hornaday, 392 F.3d 1306, 1315-16 (11 Cir. 2004), cert. denied, 125 th

S.Ct. 2951 (2005)). Although the non-constitutional harmless error standard of

review imposes a less demanding burden on the government than the beyond a

reasonable doubt burden imposed in cases of constitutional error, see Mathenia,

409 F.3d at 1291-92, “the non-constitutional harmless error standard is not easy

for the government to meet.” Id. at 1292.

The government concedes Booker statutory error; it argues the error was

harmless because the sentence imposed -- 72 months -- was two months higher

than the bottom of Defendant’s applicable sentencing range of 70 to 87 months,

and because the court stated that it believed the sentence “appropriate, given

[Defendant’s] role and activities in this case, and it comes close to the bottom of

the Guidelines recommended by the parties.” But the district court also
5

commented that Defendant would be resentenced if the “Guidelines go down in

flames.” This comment suggests that Defendant could have received a different

sentence if the district court fashioned a sentence in a sentencing scheme where

the guidelines were advisory.

The record does not allow us to say with fair assurance that Defendant’s

sentence was not substantially impacted on by the statutory Booker error. What

sentence the district court would have imposed had it considered the guidelines

advisory is impossible to tell. The government can not meet the burden of proving

that the district court’s application of the guidelines as mandatory was harmless. 

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

consistent with Booker.

VACATED and REMANDED.