                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                        SEPTEMBER 2, 2005
                            No. 04-16646
                                                         THOMAS K. KAHN
                        Non-Argument Calendar
                                                             CLERK
                      ________________________

               D.C. Docket No. 04-00093-CR-ORL-28JGG

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                  versus

JOSE CRUZ PAULINO,

                                                        Defendant-Appellant.

                     __________________________

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


                           (September 2, 2005)


Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
       Jose Cruz Paulino appeals his sentence for conspiracy to possess with intent

to distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C.

§ 846. Paulino asserts: (1) the district court erred in denying him a minimal or

minor-role reduction, U.S.S.G. § 3B1.2; and (2) in light of Blakely v. Washington,

124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005), the

district court erred in sentencing him under a mandatory guidelines system. We

vacate and remand for resentencing consistent with Booker.

                                      I. DISCUSSION

A.     Minimal or Minor-Role Reduction

       We review a district court’s factual determination regarding whether a

defendant is eligible for a reduction for role in the offense for clear error only.1

United States v. De Varon, 175 F.3d 930, 934 (1999) (en banc). The proponent of

a role adjustment bears the burden of establishing his role in the offense by a

preponderance of the evidence. Id. We will not find clear error unless we are “left

with a definite and firm conviction that a mistake has been committed.”

Crawford, 407 F.3d at 1177 (quotation marks and citation omitted).




       1
          Our pre-Booker standards of review concerning the district court’s application of the
sentencing guidelines still apply post-Booker. United States v. Crawford, 407 F.3d 1174, 1178 (11th
Cir. 2005)

                                                2
      Pursuant to U.S.S.G. § 3B1.2, a district court can reduce a defendant’s base

offense by two to four levels if the defendant was a “minimal” or “minor”

participant in the offense. A defendant is a minimal participant where he is

“among the least culpable of those involved in the conduct of a group.” The

defendant’s lack of knowledge or understanding of the scope and structure of the

enterprise and the activities of others is indicative of a minimal role, and such

adjustments are to be given infrequently. U.S.S.G. § 3B1.2, comment. (n.4). A

defendant is a minor participant when he “is less culpable than most other

participants,” but his role could not be described as minimal. Id., comment. (n.5).

A defendant who is held accountable only for the conduct in which he was

personally involved and who performs a limited function in the criminal activity is

not precluded from consideration for an adjustment. Id., comment. (n.3(A)).

      In determining a defendant’s role in an offense, a district court (1) must

consider the defendant’s role in the relevant conduct for which he has been held

accountable at sentencing, and (2) may also consider his role as compared to that

of other participants in his relevant conduct. De Varon, 175 F.3d at 940, 944.

With regard to the first prong of this test, the district court should grant a

downward adjustment for a minor role in the offense only if the defendant can

establish that he played a relatively minor role in the conduct for which he has

                                           3
already been held accountable. Id. at 944. “[W]here the relevant conduct

attributed to a defendant is identical to [his] actual conduct, [he] cannot prove that

[he] is entitled to a minor role adjustment simply by pointing to some broader

criminal scheme in which [he] was a minor participant but for which [he] was not

held accountable.” Id. at 941. Additionally, drug “courier status in and of itself is

not dispositive of whether a defendant is entitled to or precluded from receiving” a

minor-role reduction. Id. at 942. In the drug courier context, the amount of drugs

is a “material consideration” in determining the defendant’s role, because the

amount of drugs in a courier’s possession “may be the best indication of the

magnitude of the courier’s participation in the criminal enterprise.” In extreme

cases, the amount of drugs may even be dispositive of the defendant’s role. Id. at

943. In determining the defendant’s role in the drug courier context, the district

court should consider several factors, including the “amount of drugs, fair market

value of drugs, amount of money to be paid to the courier, equity interest in the

drugs, role in planning the criminal scheme, and role in the distribution.” Id. at

945.

       As to the second prong of the De Varon test—the defendant’s role as

compared to that of other participants in the relevant conduct—the district court

should only consider other participants who are “identifiable or discernable from

                                          4
the evidence.” The fact a defendant’s role is less than that of other participants is

not dispositive, as it is possible that none of the participants are minor participants.

The defendant must prove that he was less culpable than most other participants.

Id. at 944.

       With regard to the first prong of the De Varon test, Paulino was held

accountable for a larger quantity of marijuana than he actually participated in

storing. Paulino was held responsible for 1,496 kilograms of marijuana.

However, the PSI indicates the quantity of marijuana unloaded on Paulino’s yard

and later stored in his home was only 900 pounds, or 408.24 kilograms.2 Paulino

additionally possessed another 47 pounds of marijuana that was given to him

previously by the co-conspirators. This amounted to a total of 947 pounds, or

429.56 kilograms, less than the 1,496 kilograms involved in the whole conspiracy.

       On the other hand, a significant quantity of drugs was involved in the

conspiracy, even taking into account only the 429.56 kilograms that Paulino stored

in his home. This is a “material consideration” in determining Paulino’s role,

because it “may be the best indication of the magnitude of the courier’s

participation in the criminal enterprise.” Id. at 943. Furthermore, in the drug



       2
         According to the measurement conversion table in the guidelines manual, 1 pound is equal
to 0.4536 kilograms. U.S.S.G. § 2D1.1.

                                               5
courier context, which is similar to the role Paulino played, the district court

considers the “amount of drugs, fair market value of drugs, amount of money to be

paid to the courier, equity interest in the drugs, role in planning the criminal

scheme, and role in the distribution.” Id. at 945. As noted above, the quantity of

the drugs, and presumably their market value, was substantial. Paulino was aware

the offense involved a large quantity of drugs because he personally helped move

900 pounds of marijuana into his residence. Also, Paulino was to be paid $10,000,

a significant sum, for storing the drugs. With regard to Paulino’s role in planning

the scheme, the Government noted at sentencing, without objection from Paulino,

that Paulino had introduced Todd, a major participant in the conspiracy, to several

of the co-conspirators in the scheme. Finally, with regard to role in the

distribution, Paulino claims he was to have no role in the ultimate distribution of

the drugs. However, no information was presented either in the PSI or at

sentencing concerning how or by whom the drugs were to be distributed. As the

proponent of the role adjustment, Paulino had the burden of establishing his role

by a preponderance of the evidence, and he cannot simply state he was to have no

role in the distribution without any evidence to support that assertion. Id. at 934.

      As for the second prong of the De Varon test, Paulino did not establish he

was less culpable than most other participants. Id. at 944; U.S.S.G. § 3B1.2,

                                           6
comment. (n.5). As the Government pointed out, Paulino agreed to store over 900

pounds of marijuana in his residence. He also helped load the drugs into his

house. Although Paulino claims he was only supposed to store the drugs “for a

short period of time,” the record contains no evidence concerning the amount of

time the drugs were to stay in Paulino’s custody. Also, as noted above, the

Government stated at sentencing, without objection from Paulino, that it was

Paulino who initially introduced Todd to several of the co-conspirators in the

scheme. By helping to recruit participants and agreeing to store a sizeable

quantity of marijuana in his personal residence, Paulino cannot show he was less

culpable than most of the other participants, several of whom simply helped load

and unload the marijuana or acted as look-outs.

      Accordingly, based upon the foregoing, the circumstances of this case do

not establish “a definite and firm conviction that a mistake has been committed”

with regard to the district court’s failure to award a minimal or minor-role

reduction. Therefore, the district court did not clearly err in denying such a

reduction.

B.    Blakely/Booker

      Although Paulino bases the arguments in his brief around the plain error

standard of review, he raised a Blakely objection before the district court. Thus,

                                          7
we review his sentence de novo, but will reverse only for harmful error. See

United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We have clarified there

are two types of Booker error: (1) Sixth Amendment, or constitutional, error based

upon sentencing enhancements imposed under a mandatory Guidelines system

neither admitted by the defendant nor submitted to a jury and proven beyond a

reasonable doubt; and (2) statutory error based upon sentencing under a mandatory

Guidelines system. United States v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir.

2005). We turn directly to statutory error.

      Because the district court sentenced Paulino under a mandatory Guidelines

system, statutory error exists. See id. “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 a very slight effect. If one can say with fair

assurance . . . that the sentence was not substantially swayed by the error, the

sentence is due to be affirmed even though there was error.” United States v.

Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (internal quotation marks and

brackets omitted). The Government has the burden of showing the error was

harmless. Id.

      Although the Government points to the fact Paulino's Guideline range was

51 to 57 months' imprisonment, and the district court’s sentence of 52 months

                                           8
exceeded the minimum sentence the district court could have given Paulino under

the mandatory Guidelines system by one month, this fact alone is not enough to

meet the Government’s burden of showing harmless error. There is nothing in the

record to indicate whether the district court would have imposed a different

sentence if it had applied the Guidelines in an advisory rather that mandatory

fashion.3 Thus, we simply do not know what the sentencing court would have

done had it understood the Guidelines to be mandatory, and cannot say with fair

assurance that Paulino’s sentence was not swayed by the error. See id. Thus, the

Government cannot meet its burden of showing the mandatory application of the

Guidelines was harmless.

                                    II. CONCLUSION

       The district court did not err in refusing to grant Paulino a minor-role

reduction. The district court did err, however, in sentencing Paulino under a

mandatory Guidelines system and that error was not harmless. Thus we vacate

Paulino’s sentence and remand for resentencing in light of Booker. We note the

district court correctly calculated Paulino’s Guidelines range of 51 to 63 months’


       3
          During the course of the sentencing, the district judge commented that Guideline
sentencing in the state and federal system did not really amount to “guidelines,” but rather
“sentencing requirements,” and noted it would be “interesting” to see how actual guidelines would
work. The judge did not make any comments concerning how such a system would affect its ruling,
however.

                                               9
imprisonment. See United States v. Crawford, 407 F.3d 1174, 1178–79 (11th Cir.

2005) (stating after Booker, district courts must consult the Guidelines and “[t]his

consultation requirement, at a minimum, obliges the district court to calculate

correctly the sentencing range prescribed by the Guidelines”). Thus, on remand

the district court is required to sentence Paulino according to Booker, considering

the Guidelines advisory range of 51 to 63 months’ imprisonment and “other

statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).” Booker, 125

S. Ct. at 757.4

       VACATED AND REMANDED.




       4
          We do not mean to imply by our holding that on remand the district court must impose a
lesser sentence. Rather, we merely hold the Government has not met its burden to show the statutory
error was harmless. We also will not attempt to decide now whether particular sentences below the
Guidelines range might be reasonable in this case.

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