Guillermo Gallegos-Aguero appeals his 96-month sentence for illegal re-entry into the United States following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Gallegos-Aguero argues that the district court violated his Sixth Amendment rights by imposing a 16-level increase in his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(vii),
Because Gallegos-Aguero objected to the enhancements to his sentence in the district court, we review his sentence de novo. United States v. Paz, 405 F.3d 946, 948 (11th Cir.2005). We will reverse the district court only if the error was harmful. Id. We find that the district court's use of prior convictions to enhance Gallegos-Aguero's sentence did not violate the Sixth Amendment. Subsequent to the filing of the briefs in this case, the Supreme Court issued its opinion in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in which it held that Blakely applies to the federal Sentencing Guidelines and reaffirmed its Apprendi holding 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." Post-Booker, this Court has reaffirmed that there is no Sixth Amendment violation when a district court enhances a sentence based on prior convictions, including those specified in § 2L1.2(b)(1)(A). See United
However, because Gallegos-Aguero was sentenced under the pre-Booker mandatory sentencing scheme, there is error in light of the Supreme Court's remedial holding in Booker. See United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.2005). The use of the guidelines as mandatory was error, even in the absence of a Sixth Amendment violation. See United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir.2005). Because Gallegos-Aguero preserved his Blakely/Booker claim at sentencing, we review for harmless error. See United States v. Paz, 405 F.3d 946, 948 (11th Cir.2005).
Non-constitutional error is harmless when it does not affect the substantial rights of the parties. See 28 U.S.C. § 2111; United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir.1999). Under this standard, we must reverse "only if [the error] resulted in actual prejudice because it had substantial and injurious effect or influence in determining the [result]." Id. (internal quotation marks omitted); see also Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The burden is on the government to show that the error did not affect the defendant's substantial rights. See Paz, 405 F.3d at 948.
Having carefully reviewed the presentence investigation report and the transcript of Gallegos-Aguero's sentencing hearing, we find that the district court's use of the guidelines as mandatory constituted harmless error. The district court judge sentenced Gallegos-Aguero to the highest sentence available under the applicable guideline range, and considered sentencing Gallegos-Aguero to 20 years, the maximum allowable under the statute of conviction.
Compounding the confusion, however, Gallegos-Aguero's brief repeatedly states his complaint as directed towards what he identifies as a 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii), which he claims was applied based on the characterization of his prior conviction as an "aggravated felony." In reality, § 2L1.2(b)(1)(A)(ii) provides for enhancement for a "crime of violence" and does not appear to have been applied here. We therefore construe Gallegos-Aguero's Blakely argument as being directed to the 16-level enhancement based upon his prior conviction for an alien smuggling offense, pursuant to § 2L1.2(b)(1)(A)(vii), as that is the only cognizable target for his objection.