                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________
                                                                         FILED
                                                                 U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                No. 04-13910
                                                                      JUNE 22, 2005
                            Non-Argument Calendar
                                                                    THOMAS K. KAHN
                          ________________________                      CLERK

                   D. C. Docket No. 03-00332-CR-T-23-TBM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

ISAAC BONILLA,

                                                           Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________
                               (June 22, 2005)

Before TJOFLAT, ANDERSON, and MARCUS, Circuit Judges.

PER CURIAM:

      Isaac Bonilla appeals his 108-month sentence for conspiracy to possess with

intent to distribute cocaine and possession with intent to distribute cocaine, in
violation of 46 U.S.C. App. § 1903 and 21 U.S.C. § 960. On appeal, Bonilla

argues that the district court erred at sentencing, under United States v. Booker,

543 U.S. ___, 125 S. Ct. 738 (2005), by applying an enhancement for his role as a

pilot of a vessel that was carrying cocaine because that fact was not charged in the

indictment, found by a jury, or admitted by him. According to Bonilla, the Booker

error was not harmless beyond a reasonable doubt because the district court

indicated that it thought Bonilla’s sentence was greater than necessary and that, if

not for the mandated Guidelines range, it was inclined to impose a 96-month,

rather than 108-month, sentence.

      Bonilla raised this argument in the district court and therefore is entitled to

de novo review. United States v. Paz, --- F.3d ---, 2005 WL 757876, *2 (11th Cir.

Apr. 5, 2005). We will reverse a Booker error only if the error was harmful,

meaning that the error affected substantial rights. Id. The government bears the

burden of establishing that an error did not affect a defendant’s substantial rights.

Id.

      In Blakely v. Washington, 542 U.S.       , 124 S. Ct. 2531, 2536, 2543,159 L.

Ed. 2d 403 (2004), the Supreme Court reversed an upward departure imposed

pursuant to the State of Washington’s sentencing guidelines, applying the rule in

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d



                                         2
435 (2000), that “[o]ther than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”         In reversing the

upward departure, the Supreme Court held that the relevant “‘statutory maximum’

for Apprendi purposes is the maximum sentence a judge may impose solely on the

basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. at

___, 124 S. Ct. at 2537 (emphasis in original).

      While the instant case was pending on appeal, the Supreme Court issued its

decision in Booker, finding “no distinction of constitutional significance between

the Federal Sentencing Guidelines and the Washington procedures at issue” in

Blakely. Booker, 543 U.S. at ___, 125 S.Ct. at 749. Resolving the constitutional

question left open in Blakely, the Court held that the mandatory nature of the

Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial. Id. at ___,125 S.Ct. at 749-51. In extending

its holding in Blakely to the Sentencing Guidelines, the Court explicitly reaffirmed

its rationale in Apprendi 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.” Id. at ___, 125 S. Ct. at 756.



                                          3
       In United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005),

petition for cert. filed, (U.S. Feb. 23, 2005) (No. 04-1148), we stated that, under

the holding in Booker, “the Sixth Amendment right to trial by jury is violated

where under a mandatory guidelines system a sentence is increased because of an

enhancement based on facts found by the judge that were neither admitted by the

defendant nor found by the jury.” (emphasis in original). In Paz, we concluded

that, because the district court had indicated that it would have imposed a lesser

sentence, had the guidelines not been mandatory, the government could not show

that it was harmless error for the district court to apply an extra-verdict

enhancement. Paz, 2005 WL 757876, *2.

       Because Bonilla’s sentence was enhanced, under a mandatory guidelines

system, based on facts not found by a jury and not admitted to by him during the

plea colloquy, and the government has not met its burden to show harmlessness,

and indeed appears to concede the error was not harmless (at the sentencing

hearing, the district court stated it would impose a lower sentence if it was not

bound by the Guidelines), we vacate and remand Bonilla’s sentence for

resentencing, pursuant to the discretionary Sentencing Guidelines scheme now

required by Booker.1


       1
         We note that in this case, the district court correctly determined the Guidelines range for
Bonilla’s conviction. We have considered Bonilla’s challenge to the two-level enhancement for his

                                                 4
       VACATED AND REMANDED.




role in the offense, and note that the district court did not err factually by applying the enhancement
based on its conclusion that he was captain of the vessel that was transporting the cocaine. On
remand, pursuant to Booker, the district court is required to sentence Bonilla 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.

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