FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

July 20, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-16237

Non-Argument Calendar

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D.C. Docket No. 03-00348-CR-J-32-MCR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WAYNE ANTHONY MOORE,

Defendant-Appellant.

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Appeal from the United States District Court for the

Middle District of Florida

_________________________

(July 20, 2005)

Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

Wayne Anthony Moore appeals his sentence of 360 months’ imprisonment

for distribution and possession with intent to distribute cocaine base, in violation
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of 21 U.S.C. sections 841(a)(1) & (b)(1)(B). Moore argues that the district court

erred under United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), when it

sentenced him under mandatory guidelines as a career offender based on facts not

proved to a jury beyond a reasonable doubt. Because the government did not

establish that the statutory error under Booker was harmless, we vacate and

remand for resentencing. 

“[A] constitutional objection that is timely, . . . receives the benefit of

preserved error review.” United States v. Candelario, 240 F.3d 1300, 1305 (11th

Cir. 2001). Where, as here, an error was preserved below, we review de novo and,

“if error is found, it is generally subject to the harmless error analysis of

Fed.R.Crim.P. 52(a).” Id. at 1303 n.3. Rule 52(a) states that “[a]ny error, defect,

irregularity, or variance that does not affect substantial rights must be

disregarded.” Fed. R. Crim. P. 52(a).

In Booker, the Supreme Court held that “[a]ny 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 be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” 

Booker, 543 U.S. at ___, 125 S. Ct. at 756. We have explained that there are two

kinds of sentencing errors based on Booker. The first is constitutional error: “the
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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.” United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005)

(citations omitted). The second is statutory error: “[a]s 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.” United States

v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). 

Each kind of Booker error requires a different standard of review to

determine whether the error was harmless. Booker constitutional error is harmless

when the government can show, beyond a reasonable doubt, that error did not

contribute to the ultimate sentence. Booker statutory error is subject to a less

demanding test. See United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir.

2005). A statutory error is harmless if, viewing the proceedings in their entirety,

the error did not affect the sentence or had only a “very slight effect.” Id. If the

sentence was not “substantially swayed” by the error, then the sentence is due to

be affirmed in spite of the error. Id. The harmless error standard for statutory

errors is not easy for the government to meet, and is as difficult for the

government to meet as the third-prong prejudice standard that a defendant must
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meet under plain error review. Id. In other words, the government has the burden

to show that the error did not affect the defendant’s substantial rights. See id. 

This appeal requires that we apply each of these standards. Moore raised in

the district court both constitutional error and statutory error. We address each in

turn.

The district court did not commit constitutional error under Booker when it

applied the career offender enhancement based on Moore’s previous convictions. 

In Almendarez-Torres v. United States, 523 U.S. 224 118 S. Ct. 1219 (1997), the

Supreme Court concluded that recidivism is not a separate element of an offense

that the government is required to prove beyond a reasonable doubt. 523 U.S. at

247, 118 S. Ct. at 1232-33. Booker specifically excepted prior convictions from

its holding. See Booker, 543 U.S. at __, 125 S. Ct. at 756. We have repeatedly

determined that the Supreme Court has left its holding in Almendarez-Torres

undisturbed, and that Almendarez-Torres remains good law and binding precedent

until the Supreme Court decides otherwise. See United States v. Orduno-Mireles,

405 F.3d 960, 962-63 (11th Cir. 2005); Shelton, 400 F.3d at 1329.

Moore’s related argument that the district court violated his right against

self-incrimination under the Fifth Amendment is frivolous. At the sentencing

hearing, Moore admitted his previous convictions and the district court
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alternatively relied upon the judgments regarding those convictions filed by the

government. Moore did not even attempt to invoke his privilege against selfincrimination.

Although there was no constitutional error, the district court erred when it

sentenced Moore under a mandatory guidelines system. See Shelton, 400 F.3d at

1330-31. Accordingly, we must determine whether the government showed that

the error did not affect the sentence or had only a “very slight effect.” 

Mathenia,409 F.3d at 1292. We conclude that the government has not met that

heavy burden. There is nothing in the record to suggest that had the district court

known the guidelines were advisory, the district court would have imposed the

same sentence. We, therefore, vacate and remand for resentencing consistent with

Booker.

VACATED AND REMANDED.