F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          August 5, 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                        No. 04-1553
 v.                                                      (D. of Colo.)
 ANDREW JAMES NELSON,                               (D.C. No. 03-CR-246-D)

              Defendant-Appellant.


                           ORDER AND JUDGMENT            *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.           **




      Defendant-appellant Andrew James Nelson appeals the sentence imposed

following his guilty plea to one count of aggravated sexual abuse under 18 U.S.C.

§ 2241(c). We remand for resentencing in light of    United States v. Booker , 125 S.

Ct. 738 (2005).




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
       Under the United States Sentencing Guidelines, the base offense level for

Nelson’s crime is 27.   See USSG § 2A3.1(a). The district court imposed two

sentencing enhancements, a four-point enhancement because the victim was less

than 12 years of age, see 

2A3.1(b)(2)(A), and a two-point enhancement

because the victim was in Nelson’s care when the sexual assault occurred,     see id .

at § 2A3.1(b)(3)(A). Following a three-point reduction based on Nelson’s

acceptance of responsibility, the court arrived at a total offense level of 30.

Combined with Criminal History Category I, the applicable guideline range was

97 to 121 months. 

5, pt. A, Sentencing Table. At sentencing, the

district court declined to depart downward from this range and sentenced Nelson

at the bottom of the range, 97 months.

       Following issuance of the Presentence Report, which calculated Nelson’s

guideline range as set forth above, Nelson argued that in light of   Blakely v.

Washington , 

(2004), the sentencing guidelines were unconstitutional

in their entirety. The district court disagreed, preferring instead to await the

Supreme Court’s then-pending decision in       Booker . We now know, following

Booker , that Nelson’s constitutional objection was not without merit. According

to Booker , the Sixth Amendment requires “[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


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

Booker , 125 S. Ct. at 756. To remedy the guidelines’ Sixth Amendment problem,

the Court excised 18 U.S.C. § 3553(b)(1), making the guidelines advisory in all

cases. 

       Thus, there are two distinct types of     Booker error that a sentencing court

could make. United States v. Gonzalez-Huerta         , 

, 731–32 (10th Cir.

2005). “First, a court could err by relying upon judge-found facts, other than

those of prior convictions, to enhance a defendant’s sentence mandatorily.”       

, 125 S. Ct. at 756). “Second, a sentencing court could err by

applying the Guidelines in a mandatory fashion, as opposed to a discretionary

fashion, even though the resulting sentence was calculated solely upon facts that

were admitted by the defendant, found by the jury, or based upon the fact of a

prior conviction.”   

, 125 S. Ct. at 769). Nelson concedes that

this case involves the latter—what we call non-constitutional      Booker

error —because he admitted and agreed to the facts supporting the sentencing

enhancements.

       Because Nelson raised Blakely in the district court, he adequately preserved

his non-constitutional   Booker claim and our review is for harmless error.     See

United States v. Labastida-Segura,     

, 1142 (10th Cir. 2005).

According to Federal Rule of Criminal Procedure 52(a), “[a]ny error, defect,


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

disregarded” on harmless error review. In harmless error cases the government

bears the burden of demonstrating that the defendant’s substantial rights were not

affected. United States v. Riccardi, 

, 875 (10th Cir. 2005) (citation

omitted).

      In the instant case, the district court sentenced Nelson under sentencing

guidelines it viewed as mandatory. The court also exercised its discretion to

sentence Nelson at the bottom of his applicable guidelines range. We have held

that where non-constitutional Booker error was properly preserved and the

defendant was sentenced at the bottom of his guidelines range, without more to

the record we cannot conclude the error was harmless:

      Here, where it was already at the bottom of the guidelines range, to say that
      the district court would have imposed the same sentence given the new
      legal landscape (even after consulting the Sentencing Guidelines in an
      advisory capacity) places us in the zone of speculation and conjecture—we
      simply do not know what the district court would have done after hearing
      from the parties. Though an appellate court may judge whether a district
      court exercised its discretion (and whether it abused that discretion), it
      cannot exercise the district court’s discretion.

(citation omitted). In other cases, however,

we have found the mandatory application of the guidelines to be harmless. See

United States v. Glover, 

(10th Cir. 2005) (holding non-

constitutional Booker error was harmless because defendant sentenced at high end

of sentencing range and sentencing judge stated the sentence was justified);

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United States v. Ollson, 

(10th Cir. 2005) (holding non-

constitutional Booker error harmless because the judge exercised discretion in

departing downward); United States v. Riccardi, 

(10th Cir. 2005)

(holding constitutional Booker error harmless because defendant sentenced at high

end of sentencing range and sentencing judge stated the sentence was

appropriate).

      The government argues that the non-constitutional Booker error was

harmless because the district court, exercising its discretion, declined to grant

Nelson’s motion for a downward departure. We disagree. The district court’s

decision not to depart, of course, is a relevant inquiry in sentencing appeals under

Booker. See, e.g., United States v. Lawrence, 

, 908 (10th Cir. 2005)

(concluding district court’s refusal to depart from the guideline range was

evidence the court felt sentence was an appropriate sentence). In this case, unlike

our cases finding harmless error, the district court’s decision not to depart says

little about the court’s willingness, in a discretionary environment, to sentence

Nelson below the guideline range. This is because Nelson’s departure motion

asked the court to impose probation instead of jail time—effectively asking the

judge to depart downward from a minimum sentence of 97 months to zero months.

The judge was clearly uncomfortable with such a drastic departure: “[Y]ou’re

asking me to go all the way down to the bottom. And that’s where I’m having a


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problem,” and “I don’t see any scenario under which I shouldn’t send the

defendant to jail.” R.O.A. IV, at 71, 73. Merely because the district court

believed jail time was appropriate does not necessarily establish that it would

have imposed the same sentence given the new legal landscape.

      The government nevertheless responds that the sentencing court expressed

satisfaction with the sentence it imposed. While it is true the court stated it

believed the sentence was appropriate under the guidelines’ range, we cannot

conclude with requisite certainty that the court would apply the same range given

additional discretion after Booker.

      Accordingly, we REMAND this case for resentencing.

                                        Entered for the Court


                                        Timothy M. Tymkovich
                                        United States Circuit Judge




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