United States v. Kevin Patrick Szabo

Sep 9, 2005
04-13492 & 04-13581; D.C. Docket 03-00218-CR-CB
Versions:

Before ANDERSON, BARKETT and PRYOR, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

This appeal of Kevin Patrick Szabo regarding the imposition of his sentence is on remand from the Supreme Court of the United States for further consideration in the light of United States v. Booker, 543 U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Szabo v. United States, — U.S. —, 125 S.Ct. 1998, 161 L.Ed.2d 853 (2005). We previously affirmed Szabo‘s sentence. United States v. Szabo, 127 Fed.Appx. 473 (11th Cir.2004). After reconsideration, we vacate Szabo‘s sentence and remand this case to the district court for resentencing.

Szabo, a federal prisoner convicted on two counts of bank robbery, appealed the imposition of a sentencing enhancement under section 2B3.1(b)(2)(F) of the United States Sentencing Guidelines for making a threat of death. Szabo argued, under Blakely v. Washington, 524 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), that the admissions he made in his plea agreements that during the robberies he had told the bank tellers ” ‘I have a gun’ (or words to that effect)” were insufficient to prove that he had made a threat of death. Because Szabo‘s admissions were sufficient to support the enhancement and this Court had held that Blakely did not apply to the federal sentencing guidelines, we affirmed Szabo‘s sentence.

On remand, Szabo does not argue that his admissions were insufficient to support the sentencing enhancement for making a threat of death. Szabo challenges only the imposition of his sentence under a mandatory guideline system. Because Szabo objected to his sentence on the grounds of Blakely, he properly preserved this objection. See United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir.2005). We review Szabo‘s Booker objection, therefore, to determine if the error was harmless. Id. Statutory Booker 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 1292 (internal quotation marks and citation omitted). The government bears the burden to show that the error was harmless. Id.

The government has not established that the error did not affect Szabo‘s sentence or “had but very slight effect.” The sentence, therefore, is vacated and this case remanded to the district court for resentencing.

VACATED AND REMANDED.

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Tadeusz Bohdziun appeals pro se the district court‘s dismissal of his civil complaint, which was brought pursuant to 28 U.S.C. § 1343. The district court determined that his claim was barred by the doctrine of res judicata. In the instant lawsuit, Bohdziun sued Florida Lake County (“the County“), alleging that the County had refused to issue him a building permit, denied him access to his property, and permitted the owner of a nearby lot to trespass on his property, and thus he was entitled to just compensation for the County‘s temporary regulatory taking of his property. On appeal, Bohdziun argues that res judicata is inapplicable in his case because his prior federal lawsuit was not adjudicated on the merits, as: (1) the district court dismissed it without a jury trial, in violation of the Seventh Amendment; and (2) this Court, and the Supreme Court, refused jurisdiction of his appeals. He further contends that res judicata is inapplicable because the parties in this case were not identical to the parties in his 1999 federal case, as there, he sued the County officials in their individual capacities, and here, he sued the County government. Furthermore, he argues that the cause of action in both suits was not the same because his 1999 federal cause of action was reverse condemnation for a permanent taking, but here, he was seeking to recover possession and obtain a building permit, due to a temporary taking. He also ar-