In U.S. v. Mathenia, No. 04-15250 (May 23, 2005) (Black, Carnes, Pryor), the Court affirmed a sentence of a defendant convicted of distributing and receiving child pornography.
The defendant received a 96-month sentence. His Guideline range was 87-108 months.
The Court noted that there are two Booker errors, a "constitutional" error and a "statutory" error. The constitutional error is the use of extra-verdict enhancements to reach a guidelines result. The statutory error is in the use of mandatory guidelines. The constitutional error is reviewed for harmlessness, with the government bearing the burden of showing that the error did not contribute to the defendant’s sentence. The statutory error is reviewed under a less demanding test, where a court determines whether one can say that the error "had but a very slight effect." The Court noted that Mathenia raised a statutory error.
In the instant case, the district court stated at sentencing that it would impose "the same" sentence if the guidelines were just advisory. Under these circumstances, the Court noted, it had previously held that the government met the more demanding constitutional standard. Thus, there was no error under the less demanding statutory error case: the error "had but a slight effect."
