                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                                 JUNE 23, 2005
                                 No. 04-13992                  THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                       D.C. Docket No. 04-20208-CR-DLG

UNITED STATES OF AMERICA,
                                                              Plaintiff-Appellee,

      versus

OSCAR ARGENIS MEJIAS MORALES,

                                                              Defendant-Appellant.
                         __________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                 (June 23, 2005)

Before BIRCH, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

      Oscar Argenis Mejias Morales appeals his sentence of fifty-seven months

imposed following his guilty plea for importation of 100 grams or more of heroin,

in violation of 21 U.S.C. § 952(a). He contends that the district court
impermissibly found that his acquiescence to the government’s factual proffer at

the plea colloquy was an admission of drug quantity and, therefore, his sentence

based on this drug quantity was unconstitutional under United States v. Booker,

543 U.S. –, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

      Morales agreed to plead guilty to one count of importation of 100 grams or

more of heroin, in violation of 21 U.S.C. § 952(a). The plea agreement did not

limit Morales’s right to appeal his conviction or sentence.

      At the change-of-plea hearing, the government stated that it could prove

that, upon arrival at Miami International Airport on a flight from Venezuela,

Morales was selected for secondary inspection by Customs, where officials found

a white powdery substance in two pair of shoes and the binder of a book. The

substance tested positive for heroin totaling 988.6 grams. Morales admitted that

the factual proffer was correct and he entered a plea of guilty, which the court

accepted.

      The probation officer prepared a presentence investigation report (“PSI”),

recommending a base offense level of thirty under U.S.S.G. § 2D1.1(c)(5) given

the 988.6 grams of heroin involved. The probation officer recommended that this

level be decreased by two levels under the safety-valve provision, and by three

levels based on Morales’s acceptance of responsibility, U.S.S.G. § 3E1.1. With an

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adjusted offense level of twenty-five, and a criminal history category I, Morales’s

guidelines range was fifty-seven to seventy-one months imprisonment.

      Morales objected to the PSI on the grounds that, under Blakely v.

Washington, 542 U.S. –, 124 S.Ct. 2531, 159 L.Ed.2d403 (2004), his base offense

level should have been 26 because the indictment charged only 100 grams or more

of heroin. At sentencing, the court overruled the objection, finding that Morales’s

acceptance of the factual proffer at the plea colloquy established the drug quantity

for sentencing purposes. The court then adopted the PSI’s factual findings and

guidelines calculations and sentenced Morales to fifty-seven months imprisonment

and three years supervised release.

      We review preserved Booker errors de novo, but “will reverse only for

harmful error.” See United States v. Mathenia, No. 04-15250, slip op. at 2328

(11th Cir. May 23, 2005).

      In Booker, the Supreme Court reiterated its previous 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.” 125 S.Ct. at 749, 756. The Court then determined that the

mandatory nature of the sentencing guidelines was incompatible with its

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constitutional holding, and, therefore, the guidelines could be advisory only. The

Court, however, explained that although the guidelines were advisory only, courts

should consider the guidelines in addition to the sentencing factors in 18 U.S.C.

§ 3553(a), in determining a reasonable sentence. 125 S.Ct. at 756-57, 764.

       Here, Morales stipulated to the drug quantity. Therefore, there is no

constitutional error in the imposition of his sentence. See United States v. Burge,

407 F.3d 1183 (11th Cir. 2005).

       Although there is no Sixth Amendment violation in this case, there is

statutory error because the court imposed sentence under a mandatory guideline

scheme. Thus, the burden falls on the government to show that the error was

harmless. Mathenia, slip op. at 2328-29. “A non-constitutional error is 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.”1 Id. (citations and

quotations omitted).

       Here, we cannot say that the government has met its burden to show that the

error was harmless. The court sentenced Morales at the low end of the guidelines

range, and we do not know that the court would have imposed the same sentence


       1
          The heightened “beyond a reasonable doubt” test applies to harmless error cases involving
constitutional errors. United States v. Robles, No. 04-13598, slip op. at 2257 (11th Cir. May 10,
2005). Here, there is statutory, but not constitutional, error.

                                                4
had it known that the sentencing guidelines were advisory only. Because we do

not know, the government has not met its burden. United States v. Petho, No. 04-

15412 slip op. at 2311 (11th Cir. May 18, 2005); United States v. Davis, No. 04-

14585 (11th Cir. May 4, 2005).

      Accordingly, we VACATE and REMAND for resentencing.




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