FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 8, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-15350 

Non-Argument Calendar

________________________

D.C. Docket No. 04-60044-CR-AJ 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BERTLIS E. MCGRIFF,

Defendant-Appellant.

__________________________

Appeal from the United States District Court 

for the Southern District of Florida

_________________________

 (July 8, 2005)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

Appellant Bertlis E. McGriff appeals his 140-month sentence for possession

with intent to distribute five grams or more of cocaine base within 1000 feet of a
The district court found that McGriff qualified as a career offender based on his two prior 1

convictions for delivery of cocaine. At sentencing, McGriff admitted that delivery of a controlled

substance satisfied the career offender requirement of a “controlled substance offense” for 

U.S.S.G. § 4B1.1 purposes. 

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playground, in violation of 21 U.S.C. § 860. The district court enhanced

McGriff’s sentence pursuant to U.S.S.G. § 4B1.1(b) based on his status as a career

offender under U.S.S.G. § 4B1.1(a). On appeal, McGriff argues that the Supreme 1

Court’s decision in United States v. Booker, 543 U.S.___, 125 S. Ct. 738, 160 L.

Ed. 2d 621 (2005), requires his resentencing because the district court erroneously

sentenced him under the then-mandatory Federal Sentencing Guidelines (“federal

guidelines”). 

Because McGriff timely raised a Blakely objection in the district court, we

review his Blakely/Booker claim on appeal de novo, but will reverse only for

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

two harmless error standards, one that applies to Booker constitutional errors, and

one that applies to Booker statutory errors only. United States v. Mathenia, No.

04-15250, slip op. at 2328 (11th Cir. May 23, 2005). “[C]onstitutional errors are

harmless where the government can show, beyond a reasonable doubt, that the

error did not contribute to the defendant’s ultimate sentence.” Id. (citation

omitted). In contrast, Booker statutory errors are subject to the less demanding
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non-constitutional error test. Id. A “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. If one can say with fair

assurance . . . that the [sentence] was not substantially swayed by the error, the

[sentence] is due to be affirmed even though there was error.” Id. at 2328-29

(internal quotations omitted). The government has the burden of proof under both

standards. See id. at 2329. 

With regard to Booker constitutional errors, an individual’s Sixth

Amendment right to trial by jury is violated where a judge enhances an

individual’s sentence based solely on judicially found facts pursuant to a

mandatory guidelines system. Paz, 405 F.3d at 948. In McGriff’s case, the

district court enhanced his sentence after determining that he was a career offender

under the federal guidelines. The district court based this determination on

McGriff’s prior convictions. We repeatedly have held that a district court does not

violate the Sixth Amendment, as interpreted in Booker, when it enhances a

defendant’s sentence based on prior convictions. See United States v. GallegosAguero, No. 04-14242, slip op. at 2307-08 (11th Cir. May 18, 2005), United States

v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir. 2005). This is so because “a

prior conviction must itself have been established through procedures satisfying
McGriff also admitted that delivery of a controlled substance satisfied the career offender 2

requirement of a “controlled substance offense.” See Gallegos-Aguero, slip op. at 2308 (citing

Booker for the proposition that admitted facts need not be proved to a jury beyond a reasonable

doubt). 

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the fair notice, reasonable doubt, and jury trial guarantees.” Orduno-Mireles, 405

F.3d at 962 (quotation omitted). Based on this well-established rule, the district

court’s enhancement of McGriff’s sentence based on his prior convictions did not

violate the Sixth Amendment. Thus, the district court did not commit a Booker

constitutional error in enhancing McGriff’s sentence.2

Although the district court did not commit a Booker constitutional error, we

conclude that the district court committed Booker statutory error by applying the

Guidelines in a mandatory fashion. A Booker “statutory error occurs when the

district court sentences a defendant under a mandatory [g]uidelines scheme, even

in the absence of a Sixth Amendment enhancement violation.” Mathenia, No. 04-

15250, slip op. at 2328 (quotation omitted). In such cases, the government has the

burden the show that the error did not affect, or had but a very slight effect on, the

sentence. Id. at 2329. 

In Mathenia, we concluded that the government had met this burden by

citing to a statement by the district court that, if the Supreme Court were to hold

the mandatory application of the federal guidelines unconstitutional, the district
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court nonetheless would sentence the defendant identically. Id.; see also United

States v. Petho, No. 04-15412, slip op. at 2311 (11th Cir. May 18, 2005) (holding

Booker statutory error harmless in light of district court’s statement that its

sentence would be the same even if the guidelines were only advisory). In

contrast, we readily have remanded cases for resentencing upon a showing that the

district court desired to impose a lesser sentence than the one mandated by the

federal guidelines. See United States v. Dacus, 408 F.3d 686, 688-89 (11th Cir.

2005) (holding that district court committed plain error in applying the federal

guidelines in light of district court’s express desire to impose a lesser sentence);

United States v. Martinez, 407 F.3d 1170, 1174 (11th Cir. 2005) (same); Paz, 405

F.3d at 949 (holding that the district court committed constitutional error in

application of extra-verdict enhancement under federal guidelines in light of

district court’s desire to impose a lesser sentence); United States v. Shelton, 400

F.3d 1325, 1333-34 (11th Cir. 2005) (holding that the district court committed

plain error in applying the federal guidelines in light of district court’s desire to

impose a lesser sentence). 

In McGriff’s case, the district court provided two alternative sentences in

the event the federal guidelines were declared unconstitutional. Both alternative

sentences fell below the 140 months McGriff actually received. Indeed, the
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district court explicitly told McGriff, “if the Supreme Court throws out the

Sentencing Guidelines, then you’re going to get a lower sentence . . . .” As the

government concedes in its brief, the district court’s alternative sentences and

above-quoted language demonstrates that the district court sentenced McGriff

under a mandatory guidelines scheme. Moreover, it demonstrates that the

government cannot meet its burden in showing that this error did not affect, or had

a very slight effect on, McGriff’s sentence. Because the record does not show

“with fair assurance that the sentence was not substantially swayed by the error,”

we conclude that the government has failed to meet its burden in proving that the

Booker statutory error was harmless. See Mathenia, No. 04-15250, slip op. at

2329. Therefore, we vacate and remand McGriff’s sentence for resentencing

consistent with Booker. 

VACATED AND REMANDED.
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