UNITED STATES оf America, Plaintiff-Appellee, v. Leonardo ROSQUETE, a.k.a. Leonardo Firmo Rosquete-Trusillo, Defendant-Appellant.
No. 04-15862
United States Court of Appeals, Eleventh Circuit.
June 28, 2005.
414 F.3d 1285
Non-Argument Calendar.
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Leonardo Rosquete, a federal prisoner, appeals his sentence for conspiracy to possess with intent to distribute 100 kilоgrams or more of marijuana, in violation of
1. Blakely/ Booker Issue
“[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, аs in this case, an error was preserved below, we review the case de novo and, “if error is found, it is generally subject to the harmless error analysis of
In Booker, the Supreme Court held that “[a]ny fact (other than а 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 244, 125 S.Ct. at 756.
We have since clarified that there are two types of Booker error: (1) Sixth Amendment, or constitutional, error based upon sentencing enhancements neither admitted by the defendant nor submitted to a jury and proven beyond a reasonable doubt; and (2) statutory error based upоn sentencing under a mandatory guidelines system. United States v. Shelton, 400 F.3d 1325, 1329-34 (11th Cir. 2005). Where the district court sentenced the defendant under a mandatory guideline system, there is statutory error, evеn in the absence of a Sixth Amendment enhancement violation. Id. at 1330-31.
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, however, is subject to a less demanding test. United States v. Mathenia, 409 F.3d 1289 (11th Cir. 2005). A non-constitutional error is harmless if, viеwing the proceedings in their entirety, the error did not affect the sentence or had only a “very slight effect.” Id. at 2328-29. If the sentence was not “substantially swayed” by thе error, then the sentence is due to be affirmed in spite of the error. Id. at 2329. The non-constitutional harmless error standard is not easy for the government to mеet, and is as difficult for the government to meet as the third-prong prejudice standard that a defendant must meet under plain error review. Id. The third prong of the plain error standard requires the defendant to show that the error “affected substantial rights” in that the error was prejudicial
In this case, there was no constitutional Booker error in applying the career offender enhancement, which was based upon Rosquete‘s prior convictions. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court held 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 did not overrule Almendarez-Torres, but rather specifically excepted prior convictions from its holding. See Booker, 543 U.S. at 244, 125 S.Ct. at 756. Recently, we held that the Supreme Court has left its holding in Almendarez-Torres undisturbed, and that Almendarez-Torres remains good law and binding precedent until the Suрreme Court holds otherwise. United States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir. 2005).
Even if there was no Sixth Amendment violation, however, the district court erred in sentencing Rosquete under a mandatory guidelines system. Sеe Shelton, 400 F.3d at 1330-31. Accordingly, we must determine whether the government has met its burden to show that the error did not affect the sentence or had only a “very slight effect.” Mathenia, 409 F.3d at 1292. Wе conclude that the government has not met that heavy burden in the instant case. There is nothing in the record to indicate that, had it known the guidelines were аdvisory only and exercised its discretion in sentencing Rosquete, the district court would have imposed the same sentence. Therefore, we vacate and remand for resentencing consistent with Booker.
2. Collateral Estoppel
Rosquete also argues that the district court was required, under the doctrine of collateral estoрpel, to find that his prior convictions were related for the purposes of determining whether a career offender enhancement was warranted. He asserts that the determination that his convictions were related was an essential element of a prior federal proceeding and should not have been relitigated in the instant sentencing proceedings.
A district court‘s ruling concerning whether collateral estoppel aрplies to an issue is a question of law that we review de novo. United States v. Shenberg, 89 F.3d 1461, 1478 (11th Cir. 1996). We review for clear error a district court‘s determination that prior convictiоns are unrelated for criminal history purposes. United States v. Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004).
Pursuant to
Collateral estoppel requires that an issue of ultimate fact has been determined by a valid and final judgment. If it has, it generally cannot be relitigated between the same parties in а future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970).
Rosquete never showed that the issue of whether his two prior convictions were related had been determined by a valid and final judgment. In his sentenсing memorandum and at the sentencing hearing, the only evidence Rosquete presented in support of his argument that the issue had previously been litigated and decided was a portion of a PSI from the prior federal proceeding. However, the PSI contains only the recommendation of the probation officer, which the district court is not bound to follow. See
VACATED AND REMANDED.