FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

July 12, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-14469

Non-Argument Calendar

________________________

D.C. Docket No. 03-00291-CR-RWS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JANINE HARDSON,

Defendant-Appellant.

__________________________

Appeal from the United States District Court 

for the Northern District of Georgia

________________________

(July 12, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Appellant Janine Hardson appeals her 15-month sentence imposed after

pleading guilty to one count of making a false claim against the United States
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Treasury, in violation of 18 U.S.C. § 287. On appeal, Hardson argues that in light

of Blakey v. Washington, 542 U.S. ___, 124 S. Ct 2531, 159 L. Ed. 2d 403 (2004),

the district court violated her Fifth and Sixth Amendment rights in enhancing her

sentence based on the determination that the tax loss amount is greater than

$80,000, but less than $200,000, rather than using the tax loss charged in the

indictment and admitted by her of $16,961. Hardson argues that because her

sentence was enhanced based upon a fact not charged in the indictment or

admitted by her, her sentence was enhanced beyond the constitutionally

permissible statutory maximum. 

After Hardson filed her appeal, the Supreme Court rendered its decision in

United States v. Booker, 543 U.S. at ___, 125 S. Ct. 738, 160 L. Ed. 2d 621

(2005). In the resulting opinions, the Supreme Court held that “‘the 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. Mahernia, No. 04-15250, slip op. at 2328 (11th Cir. May 23,

2005) (quoting United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)

(citing United States v. Booker, 543 U.S. ___, 125 S.C. 738, 749-56 (2005)). 
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We have recognized, based on this holding, that the district courts could

have made both a constitutional and a statutory error in sentencing defendants preBooker. Mahernia, No. 04-15250, slip op. at 2328. “The constitutional error is

the use of extra-verdict enhancements to reach a guidelines result that is binding

on the sentencing judge.” Id. “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.” Id. (internal quotation omitted).

Hardson properly preserved her Booker error claim by citing Blakey in her

pre-sentencing motion to declare the Federal Sentencing Guidelines

unconstitutional and in her arguments at the sentencing hearing. See United States

v. Mahernia, No. 04-15250, slip op. at 2328 (11th Cir. May 23, 2005) (holding

that appellant properly preserved Booker error claim by citing Blakey in his

written objection to the PSI and reminding the court at sentencing of his Blakey

objection). We review a defendant’s preserved Blakey/Booker claim de novo but

will reverse and remand only for harmful error. United States v. Paz, 405 F.3d

946, 948 (11th Cir. 2005). 

There are two harmless error standards, one applies to Booker constitutional

errors, the other to Booker statutory errors. Mahernia, No. 04-15250, slip op. at

2328. “[C]onstitutional errors are harmless where the government can show,
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“beyond a reasonable doubt, that the error did not contribute to the defendant’s

ultimate sentence.” Id. On the other hand, Booker statutory errors are subject to

the less demanding test that is applicable to non-constitutional errors, that is,

“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.” Id. at

2328-29 (internal quotations omitted).

This case concerns both constitutional error and Booker statutory error. 

Hardson disputed any finding that the tax loss was greater than the amount

charged in the indictment and admitted by her of $16,961. The district court

applied a four-level enhancement, pursuant to U.S.S.G. § 2T4.1, because it

determined that the actual amount of tax loss was more than $80,000 and less than

$200,000. Because Hardson disputed a loss amount greater than $16,961, the

enhancement was made based on facts neither proven to a jury nor admitted by

Hardson, resulting in a Sixth Amendment violation of her rights. See Paz, 405

F.3d at 948 (noting that “under Booker, the Sixth Amendment right to trial by jury

is violated where under a mandatory guidelines system a sentence is increased

because of enhancement based on facts found by the judge that were neither

admitted by the defendant nor found by the jury.”) (quotation omitted).
Hardson has abandoned any claim with respect to the guidelines range. Thus, we agree with 1

the government that on remand the court should not reopen the calculations underlying the range.

See United States v. Mesa, 247 F.3d 1165, 1171 n.6 (11th Cir. 2001) (noting that by failing to raise

an issue during first appeal, the defendant abandoned that argument on remand). United States v.

Fiallo-Jacome, 874 F.2d 1479, 1481-83 (11th Cir. 1989) (refusing to consider an issue where

criminal defendant failed to raise an issue on the defendant’s first appeal, and later tried to raise the

issue in a subsequent appeal, stating that the defendant would not be given “two bites at the appellate

apple”). The court, however, is not of course bound to sentence within this range. 

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We must disregard error, however, if it is clear, beyond a reasonable doubt,

that the error did not contribute to the sentence imposed. Id. at 948-49. On this

record, we cannot hold the error to be harmless. It is evident from the sentencing

transcript that, if the district court had not been bound by the sentencing

guidelines, Hardson’s sentence would have been shorter. Hardson was sentenced

to 15 months imprisonment, but the district court imposed an alternative 10-month

sentence if the guidelines were found to not apply. In Paz, we held that the

government could not meet its burden to show harmless error where the district

court stated that it would have imposed a shorter sentence if the guidelines were

found to be unconstitutional. Paz, 405 F.3d at 949. Like Paz, the constitutional

error in the instant case was not harmless beyond a reasonable doubt. Thus, we

vacate the sentence and remand for resentencing.

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VACATED AND REMANDED.