                                                    [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                    FOR THE ELEVENTH CIRCUIT
                                             U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                           May 27, 2005
                            No. 04-14091                THOMAS K. KAHN
                        Non-Argument Calendar               CLERK
                      ________________________

                   D. C. Docket No. 04-20174-CR-JEM

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

JORGE ARTURO GIRALDO,

                                                       Defendant-Appellant.


                      ________________________

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

                             (May 27, 2005)

              ON PETITION FOR PANEL REHEARING

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      The panel’s opinion in this case issued on March 8, 2005. Pursuant to

Appellant’s petition for rehearing, which we GRANT as to panel rehearing, we

VACATE our prior opinion and issue the following opinion in its place:

      Jorge Giraldo appeals his 57-month sentence, imposed after his plea of

guilty to importing 100 grams or more of heroin, in violation of 21 U.S.C. §§

952(a), 960(b)(2). On appeal, Giraldo challenges his sentence on two grounds,

both of which he raised in the district court: (1) Giraldo argues the district court

erred by denying a minor-role reduction, because he was only a courier, and (2)

Giraldo asserts his Fifth and Sixth Amendment rights were violated, because his

sentence was based upon a drug quantity that was neither charged in the

indictment nor stipulated to by him, in violation of Blakely v. Washington, 542

U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

      We review a district court’s factual findings regarding a defendant’s role in

the offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th

Cir. 1999) (en banc). We review preserved constitutional errors de novo, but “will

reverse only for harmful error.” United States v. Sanchez, 269 F.3d 1250, 1272

(11th Cir. 2002) (en banc). After the Supreme Court’s recent decision in United

States v. Booker, __ U.S. __, 125 S. Ct. 738, 765-66 (2005), we review a district

court’s sentencing scheme for unreasonableness.

                                         2
      After thorough review of the record, as well as careful consideration of the

parties’ briefs, we find no Booker constitutional error. However, we find Booker

non-constitutional error and conclude that because the government has not met its

burden to show harmlessness, we vacate and remand Giraldo’s sentence for

resentencing, pursuant to the discretionary Sentencing Guidelines scheme now

required by Booker.

      The relevant facts are these. On March 19, 2004, Giraldo was indicted with

one count of importing into the United States 100 grams or more of heroin, in

violation of 21 U.S.C. §§ 952(a), 960(b)(2) (Count 1); and one count of possessing

with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(B). Pursuant to a written plea agreement, Giraldo agreed to

plead guilty to Count 1 and the government agreed to dismiss Count 2.1

      At the subsequent plea colloquy, Giraldo acknowledged that he (1) was

charged with importing more than 100 grams of heroin, and (2) faced a statutory

sentence of 5 to 40 years’ imprisonment. The government then provided the

following factual proffer to support the plea. On March 8, 2004, Giraldo arrived

at Miami International Airport (“MIA”) on a flight from Medellin, Colombia.

During a secondary x-ray examination of Giraldo, United States Customs and


      1
          The plea agreement did not contain a sentence-appeal waiver.

                                               3
Border Protection inspectors discovered numerous pellets distributed throughout

Giraldo’s intestinal tract. Thereafter, 99 pellets were recovered from his body. In

total, the pellets tested positive for 985 grams of heroin. The district court asked

Giraldo whether he believed that the government could prove its factual assertions

at trial, to which he responded, “Yes, I think so.”        He then proceeded to

sentencing.

      According to the presentence investigation report (“PSI”), Giraldo had

signed a written statement, in which he admitted his involvement in the offense

and stated that he had been recruited by Ulices Jaramillo to bring drugs into the

United States from Colombia. According to his statement, Giraldo was going to

be paid $30,000 when the drugs were delivered. The PSI set Giraldo’s base

offense level at 30, pursuant to U.S.S.G. § 2D1.1(c)(5), based on the probation

officer’s conclusion that Giraldo was responsible for 985 grams of heroin (again,

the amount the government earlier had proffered, and to which Giraldo agreed, at

the plea colloquy).

      With a total offense level of 25 and a criminal history category I, Giraldo’s

Guidelines range was 57 to 71 months’ imprisonment. Giraldo objected to the

probation officer’s failure to apply a two-level, minor-role reduction, pursuant to

U.S.S.G. § 3B1.2. He also objected that, pursuant to the Supreme Court’s decision

                                         4
in Blakely, he should have been held responsible for only 100 grams of heroin,

based on the amount charged in the indictment.

      At the sentencing hearing, Giraldo again argued that he was entitled to a

minor-role reduction because he played a limited role in the offense and there was

no evidence that he intended personally to distribute the drugs that he had

imported.   The government responded that a minor-role reduction was not

warranted because (1) Giraldo had been held responsible only for the heroin that

he personally imported; (2) he had an “equity interest” in the drugs; and (3) there

was a substantial amount of heroin involved in the criminal offense. After noting

its discretion to grant the reduction, the district court overruled Giraldo’s

objection, stating that it was doing so for the reasons set forth by the government

and the PSI. The court noted: “I do not believe that this is an appropriate case for

a minor role adjustment and I will not choose to do that.” The court also overruled

Giraldo’s Blakely objection, noting that he had acknowledged, during the plea

colloquy, that he had imported 985 grams of heroin.

      The district court sentenced Giraldo to a 57-month term of imprisonment.

Giraldo then renewed his objection to the denial of a minor-role reduction,

objecting to the government’s characterization of the fee that he was going to be

paid as an equity interest. Giraldo also renewed his Blakely objection, noting that

                                         5
his “tacit acceptance” of the government’s proffer at the plea colloquy did not

amount to a stipulation. The district court responded that it found Giraldo’s

acceptance of the government’s proffer as to drug quantity had not been “tacit,”

but rather was “a direct acceptance of the presentation which was made by the

government. That was my interpretation of it.” In overruling Giraldo’s renewed

objection, the court further noted: “If I had held that it was merely a tacit approval

I could assure you I would have inquired further, as I have in other cases more

recently where there has been some question as to whether they were admitting the

facts that were present[ed].” This appeal followed.

      First, Giraldo argues the district court erred by denying him a minor-role

reduction because he was only a courier, making a one-time delivery of drugs, and

the other participants were more culpable. He also asserts that the court erred by

finding he had an equity interest in the drugs -- he contends the record establishes

only that he would receive a fee for transporting the drugs from Colombia.

      The Guidelines provide for a two-level decrease where the defendant was a

minor participant in any criminal activity. See U.S.S.G. § 3B1.2(b). A minor

participant is defined as “any participant who is less culpable than most other

participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2,

comment. (n.3).    To determine whether the adjustment applies, a district court

                                          6
first should measure the defendant’s role against the conduct for which he has

been held accountable. See De Varon, 175 F.3d at 934. With regard to drug

couriers, this Court has indicated that its holding in DeVaron “[did] not create a

presumption that drug couriers are never minor or minimal participants, any more

than that they are always minor or minimal,” but “[r]ather . . . [established] only

that the district court must assess all of the facts probative of the defendant’s role

in [his] relevant conduct in evaluating the defendant’s role in the offense.” United

States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002). In drug courier cases, “the

amount of drugs imported is a material consideration in assessing a defendant’s

role in [his] relevant conduct” and “may be dispositive – in and of itself – in the

extreme case.” DeVaron, 175 F.3d at 943.

      Second, where there is sufficient evidence, a court also may measure the

defendant’s conduct against that of other participants in the criminal scheme

attributed to the defendant. See id. In making this inquiry, a district court should

look to other participants only to the extent that they (1) are identifiable or

discernable from the evidence, and (2) were involved in the relevant conduct

attributed to the defendant.     See id. at 944 (stating that “[t]he conduct of

participants in any larger criminal conspiracy is irrelevant”). Moreover, “the

amount of drugs imported is a material consideration in assessing a defendant's

                                          7
role in [his] relevant conduct.” Id. at 943.

       Here, the relevant conduct attributed to Giraldo at sentencing was the

importation of 985 grams of heroin, which represents only the amount of drugs

found on Giraldo upon his arrival at MIA. Because he was held responsible only

for the amount of narcotics he personally smuggled, Giraldo’s relevant conduct

was sufficient to support the district court’s factual finding that he played an

essential role in the importation of those drugs.2 On the second prong, Giraldo

failed to show that his conduct in transporting the drugs into the United States

rendered him less culpable than the only other participant whom he identified

(Jaramillo), and Giraldo unquestionably smuggled a substantial amount of

cocaine, which is relevant to the minor-role- reduction calculus. See De Varon,

175 F.3d at 946 (determining that 512.4 grams was a “substantial amount” of


       2
           We are unpersuaded by Giraldo’s argument that, in denying the enhancement, the district
court failed to make independent findings and improperly relied upon the government’s mistaken
assertion that he possessed an “equity interest” in the heroin. The PSI, which was adopted by the
district court, contained Giraldo’s written acknowledgment that he was to be paid a flat $30,000 fee
for transporting the heroin and made no mention of an “equity interest” in the heroin. Any error
resulting from the government’s single reference to an “equity interest,” which Giraldo had the
opportunity to object to at the sentencing hearing but did not, clearly was harmless. Cf United States
v. Shelton,400 F.3d 1325 (11th Cir. Feb. 25, 2005) (defendant who did not object to PSI’s factual
statements about relevant conduct admitted those facts) (citing United States v. Walters, 269 F.3d
1207, 1213 (10th Cir. 2001) (“Walters did not challenge the accuracy of the relevant facts contained
in the PSR. Therefore, under the law of this circuit, they are deemed admitted as true.” (citation
omitted)); United States v. Joshua, 40 F.3d 948, 952 (8th Cir. 1994) (“Joshua did not dispute the
PSR’s rendition of his criminal history, and the facts therein
therefore stand as admitted.” (citation omitted)).

                                                  8
heroin). Accordingly, we can find no clear error in the district court’s finding that

Giraldo did not play a minor role in the offense.

       Giraldo next argues that, under the Supreme Court’s holding in Blakely, his

Fifth and Sixth Amendment rights were violated because his sentence was based

upon a drug quantity that was neither charged in the indictment nor stipulated to

by him.3 In determining whether a defendant has admitted to facts for sentencing

purposes, we have held that, “when a defendant pleads guilty and accepts the drug

quantity determination contained in the pre-sentence report or agrees to drug

quantity at sentencing or in his plea colloquy, he waives any right to appeal his

sentence on the basis of Apprendi, regardless of what sentence is ultimately

imposed.”       Sanchez, 269 F.3d at 1271 n. 40.                   Moreover, a drug-quantity

stipulation waives the right to a jury trial on the issue, even if the drug quantity

causes a defendant to be sentenced above the statutory maximum for Apprendi.

Id. Therefore, “a stipulation to a specific drug quantity -- whether as part of a

written plea agreement, part of a jury trial, or at sentencing -- serve[s] as the

equivalent of a jury finding on that issue, since the stipulation takes the issue away

from the jury.” Sanchez, 269 F.3d at 1271 n.40. In surveying our Apprendi



       3
        After the filing of the briefs in this case, the Supreme Court extended Blakely to the Federal
Sentencing Guidelines. See United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).

                                                  9
precedent, we noted that this rule applies not only when the defendant takes the

affirmative step of stipulating to a particular fact, but also when the defendant fails

to object to or contest the particular finding at issue. Id. (emphasis added).

       Indeed, in the context of a plea agreement, the Blakely Court observed that

the government “is free to seek judicial sentence enhancements so long as the

defendant either stipulates to the relevant facts or consents to judicial factfinding.”

Blakely, 542 U.S. at ___, 124 S.Ct. at 2541. Thus, there is no Sixth Amendment

violation when a district court relies on facts to which the defendant agrees. Id.;

see also United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (reviewing

for plain error and holding that there was no Sixth Amendment violation under

Booker because the defendant’s sentencing enhancements were based on either

prior convictions or facts that were admitted by the defendant). Put simply,

because Giraldo admitted during the plea colloquy to the government’s factual

proffer regarding the drug quantity, the district court committed no Sixth

Amendment violation by sentencing him based on his admission.4

       4
          To the extent Giraldo again asserts that his agreement to the drug-quantity proffer was
“tacit” in nature, based on our review of the entire record, including the plea colloquy transcript, we
remain unpersuaded. At the colloquy, the district court expressly asked Giraldo about the
government’s drug-quantity proffer, and Giraldo responded that he agreed to the amount. The
district court further discussed the plea agreement, the elements of the offense, the burden of proof,
and the consequences of pleading guilty with Giraldo in detail. Giraldo responded that he was not
coerced into pleading guilty, that he understood the charges and consequences of pleading guilty, and
that he pleaded guilty. The record shows that Giraldo understood the charges against him, his

                                                  10
       Despite that there was no impermissible judicial factfinding here, we find

there was Booker error, within the meaning of the remedial holding of the case,

because the court treated the Guidelines range as mandatory and “the Supreme

Court has now excised the mandatory nature of the Guidelines in Booker.”

Shelton, 400 F.3d at 1330 (reviewing Booker claim for plain error). In Shelton,

we concluded that “it was Booker error for the district court to sentence Shelton

under a mandatory Guidelines scheme, even in the absence of a Sixth Amendment

enhancement violation.” Id. (citation omitted).                Based on the excision of the

mandatory provisions of the Guidelines, in cases involving preserved Booker

error, we have required the Government to show that the mandatory, as opposed to

the advisory, application of the Guidelines did not contribute to the defendant’s

sentence.     See United States v. Paz, 405 F.3d 946, 948-49 (11th Cir. 2005)

(holding that the Government could not meet its burden under harmless error

analysis because the record indicated that district court would have imposed



options, and the government’s proffer, and that he voluntarily and knowingly pleaded guilty. Giraldo
has pointed to no evidence suggesting an amount other than the 985 grams attributed to him. In
cases involving alleged constitutional errors, this Court must affirm “if the record does not contain
evidence that could rationally lead to a contrary finding with respect to drug quantity.” United States
v. Nealy, 232 F.3d 825, 830 (11th Cir 2000) (citation omitted). Here, Giraldo signed a written
statement, admitting his involvement in the offense, and the drug quantity was based on actual heroin
retrieved from Giraldo by law enforcement officers. In light of this evidence, there is no evidence
from which a reasonable jury could have found a contrary drug quantity.


                                                  11
shorter sentencing under advisory Guidelines scheme). The government bears the

burden to show that the Booker non-constitutional error did not affect substantial

rights. See Fed. R. Crim. P. 52(a); United States v. Gallegos-Aguero, --- F.3d ----,

2005 WL 1160635, *2 (11th Cir. May 18, 2005)(“Non-constitutional error is

harmless when it does not affect the substantial rights of the parties. . . . The

burden is on the government to show that the error did not affect the defendant’s

substantial rights.” (citations omitted)).5

       Based on our careful reading of the record, and particularly the transcript of

the sentencing hearing, we conclude that the government has not met its burden of

establishing that the error was harmless. Cf. Paz, 405 F.3d at 948-49 (holding

government failed to meet it burden to show harmlessness of mandatory

application of the Guidelines where transcript of sentencing hearing indicated

district court would have imposed shorter sentence under advisory sentencing



       5
          A non-constitutional error is harmless “if, viewing the proceedings in their entirety, a court
determines that the error did not affect the [outcome], or had but very slight effect.” United States
v. Hornaday, 392 F.3d 1306, 1315 (11th Cir. 2004) (internal quotation marks and citations omitted).
“If one can say ‘with fair assurance . . . that the judgment was not substantially swayed by the error,’
the judgment is due to be affirmed even though there was error.” Id. (quoting Kotteakos v. United
States, 328 U.S. 750, 764 66 S. Ct. 1239, 1248, 90 L. Ed. 1557 (1946)); see also United States v.
Frazier, 387 F.3d 1244, 1266 n.20 (11th Cir. 2004) (en banc) (“Errors do affect a substantial right
of a party if they have a ‘substantial influence’ on the outcome of a case or leave ‘grave doubt’ as
to whether they affected the outcome of a case.” (quoting Kotteakos, 328 U.S. at 764-65, 66 S. Ct.
at 1248)).


                                                  12
scheme). Accordingly, we vacate Giraldo’s sentence and remand for resentencing

consistent with Booker.6

       VACATED AND REMANDED.




       6
         We note that in this case, the district court correctly determined the Guidelines range for
Giraldo’s conviction. On remand, pursuant to Booker, the district court is required to sentence
Giraldo under an advisory Guidelines scheme, and, in so doing, must consider the Guidelines range
and “other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).” Booker, 125 S. Ct.
at 757.

                                                13
