[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              January 24, 2006
                              No. 05-10401                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 04-00276-CR-1-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

DERRICK OWENS,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                             (January 24, 2006)

Before ANDERSON, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

     Derrick Owens appeals his conviction and 225-month sentence for bank
robbery in violation of 18 U.S.C. § 2113(a). On appeal, Owens argues: (1) that the

district court abused its discretion by admitting into evidence the probation office’s

sign-in sheet as a business record; and (2) that the district court committed both

constitutional and statutory error under United States v. Booker, 

, 

(2005), in its application of the United States Sentencing Guidelines.

We AFFIRM the conviction but VACATE and REMAND for resentencing.

                                           I.

      Owens conceded that he robbed a SouthTrust Bank branch in Forest Park,

Georgia, on April 2, 2004. His defense relied solely upon a theory of duress. At

trial, Owens testified that two men kidnaped him on March 28, 2004, and held him

captive until he robbed the bank for them on April 2, 2004. In rebuttal, the

Government called Owens’ federal probation officer, Shelly Jones, who testified

that she met with Owens in her office on April 1, 2004, the day before the robbery.

During Jones’ testimony, the Government also offered a sign-in sheet from the

probation office showing that “Derrick A. Owens” signed the sheet on “4-1-04” for

an appointment at “9:00” with “Ms. S. Jones.” Over Owens’ objection, the district

court admitted the sign-in sheet as a business record.

      Because Owens objected to the admission of the sign-in sheet in the district

court, we review the district court’s evidentiary ruling for a clear abuse of



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discretion. United States v. Dickerson, 

, 1046 (11th Cir. 2001). We

review the factual findings underlying the ruling for clear error. 

reverse on the basis of an erroneous evidentiary ruling only if the error was not

harmless. 

An error is harmless if it “‘had no substantial influence on

the outcome and sufficient evidence uninfected by error supports the verdict.’” 

States v. Fortenberry, 

, 722 (11th Cir. 1992)).

      We need not decide whether the document was admissible as a business

record under Federal Rule of Evidence 803(6), because the written statements on

the sign-in sheet were admissible as Owens’ own admissions. Rule 801(d)(2)(A)

provides that “[a] statement is not hearsay if . . . [t]he statement is offered against a

party and is . . . the party’s own statement, in either an individual or a

representative capacity . . . .” Fed. R. Evid. 801(d)(2)(A). After the sign-in sheet

was admitted, Jones testified that she saw Owens’ name on the sheet, that she had

seen other documents on which Owens had printed his name, and that the

handwriting on the sign-in sheet was “extremely similar” to those other documents.

This testimony established the authenticity of Owens’ handwriting, see 

provided a foundation for the introduction of the written statements

on the sign-in sheet as Owens’ admissions. See United States v. Williams, 

, 1013–14 (11th Cir. 1988) (holding that testimony by defendant’s



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bookkeeper that reports bearing defendant’s initials in his own handwriting

provided foundation for admission of reports as defendant’s admissions).

Therefore, the district court did not commit a clear abuse of discretion by admitting

the sign-in sheet into evidence.

                                            II.

         Owens contends that he was sentenced in violation of United States v.

Booker, 

, 

(2005) because the district court (1)

sentenced him as a career offender without submitting the issue to the jury and (2)

applied the sentencing guidelines as mandatory. The first argument raises

constitutional Booker error; the second argument raises statutory Booker error.

See United States v. Glover, ___ F.3d ___, 

at *4 (11th Cir.

2005).

         Owens preserved both objections to his sentence by citing Blakely v.

Washington, 

, 

(2004). Therefore, we review the

sentence de novo but will reverse the district court only if the error was not

harmless. United States v. Paz, 

, 948 (11th Cir. 2005).

         Booker constitutional errors are harmless if “the error did not contribute to

the defendant’s ultimate sentence.” United States v. Mathenia, 

,

1291 (11th Cir. 2005) (citing 

–49). Booker statutory errors are



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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.” 

(quotations, citation, and alteration omitted). The government bears the burden of

showing that the error was harmless in both instances. 

                                          A.

      Owens essentially concedes that, under this Court’s recent caselaw, the

district court did not commit constitutional Booker error by sentencing him as a

career offender without submitting the issue to the jury. See United States v.

Shelton, 

, 1329 (11th Cir. 2005) (“a district court does not err by

relying on prior convictions to enhance a defendant’s sentence”). Instead, he

argues that we should anticipate that the Supreme Court will eventually decide that

it is unconstitutional for a sentencing court to unilaterally enhance a sentence based

on a prior conviction, and, on that basis, vacate his sentence. We are not

clairvoyant, however, and we refuse to speculate about what the Supreme Court

might decide if faced with this issue. Moreover, in Booker, decided less than a

year ago, a majority of the Supreme Court stated clearly: “Any 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.” 543



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U.S. at __, 125 S. Ct. at 756 (opinion of Stevens, J.) (emphasis added).

      Because we must apply existing Supreme Court precedent, as well as our

own, we hold that the district court did not violate the Sixth Amendment by

enhancing Owens’ sentence based on the fact of his prior convictions without

submitting the issue to the jury.

                                          B.

      The government concedes that the district court applied the sentencing

guidelines as mandatory, thereby committing statutory Booker error. The

government argues that because the district court imposed a sentence at the mid-

point of the guidelines range when it could have imposed a lesser sentence, the

error was harmless. In United States v. Glover, 

(11th Cir. 2005), this

Court rejected this same argument, holding that “[t]he government must do more

than rely upon a mid-range sentence to satisfy its burden under the harmless error

standard.” 

Because the government has not proved, based on the

record, that the district court would have imposed the same (or greater) sentence,

see 

find that the error was harmless.

                                         III.

      We AFFIRM Owens’ conviction for bank robbery but VACATE the

sentence and REMAND for resentencing.



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