                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 05-30120
                Plaintiff-Appellee,                D.C. No.
               v.                              CR-02-00079-12-
JUAN ANTONIO ZAVALA,                                 BLW
             Defendant-Appellant.
                                                  OPINION

         Appeal from the United States District Court
                   for the District of Idaho
          B. Lynn Winmill, District Judge, Presiding

                   Submitted March 8, 2006*
                       Portland, Oregon

                       Filed April 11, 2006

 Before: Ferdinand F. Fernandez, A. Wallace Tashima, and
             Richard A. Paez, Circuit Judges.

                     Per Curiam Opinion;
                  Dissent by Judge Fernandez




  *The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).

                                4013
                  UNITED STATES v. ZAVALA               4015


                        COUNSEL

Dennis M. Charney, Eagle, Idaho, for the defendant-appellant.

Monte J. Stiles, Assistant United States Attorney, Boise,
Idaho, for the plaintiff-appellee.
4016                  UNITED STATES v. ZAVALA
                              OPINION

PER CURIAM:

   Juan Antonio Zavala appeals the sentence that was imposed
upon him after he was convicted of conspiracy to distribute or
to possess with intent to distribute methamphetamine and of
distribution of methamphetamine. See 21 U.S.C. §§ 841(a)(1),
846. His sole claim on appeal is that the district court violated
Booker1 when it “presumed” that the advisory Sentencing
Guideline calculation set forth the proper range for sentenc-
ing. We vacate the sentence and remand.

                          BACKGROUND

   After Zavala was convicted, the sentencing process took
hold, but before it was complete the Supreme Court decided
Booker. The parties and the district court were well aware of
that fact. Because it knew that it must consult the Sentencing
Guidelines, which were now advisory, the district court then
issued a presentencing order in which it calculated the Guide-
line range. That calculation generated a life sentence as the
“range.”2 At the commencement of the sentencing hearing, the
district court assumed that the calculated “Guideline range
becomes a presumptive sentence,” and the court must then
decide if the other factors in 18 U.S.C. § 3553(a) “would jus-
tify the Court in imposing a lesser sentence than that set forth
in the Guideline range.” Moreover, the district court declared
that the burden was on Zavala to explain any justification for
imposing a different sentence—one below life imprisonment.

  The government then argued for a life sentence. When
  1
     See United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed.
2d 621 (2005).
   2
     Pursuant to the Guidelines, the offense level was 43 and the criminal
history category III. USSG §§ 2D1.1, 3B1.1. All references are to the
November 2004 version of the Sentencing Guidelines.
                    UNITED STATES v. ZAVALA                    4017
Zavala’s attorney’s turn to address the district court came
around, he started by noting that the court had commented
that the Guideline range was the “presumptive sentence.” The
court rejoined: “Well, in the sense that it is a Guideline. . . .
So that’s the starting point.” Counsel started to argue the
point, but the district court said: “Wait, wait, wait, counsel.
. . . [A]lthough the Supreme Court in Booker and Fanfan said
that they are advisory . . . they still clearly indicated, in fact
I think they used the language that ‘the majority’—they may
even have used the words ‘the vast majority’—of the sen-
tences may fall within the Guideline range. . . . How then can
I say the starting point is not the Guideline range, but, rather,
the statutory minimum?”

   The argument went on, with counsel insisting that the start-
ing point should be the statutory minimum. Finally, the dis-
trict court came to the sentencing itself and explained its
thinking as follows:

       I am most impressed by the Supreme Court’s sug-
    gestion in Booker and Fanfan; that the majority or
    vast majority of sentences will still fall within the
    Guideline range is an indication that, although the
    Guidelines are now advisory, that they should pro-
    vide the starting point of our evaluation, and the
    Court should then determine whether there is some
    grounds for a non-Guidelines-based departure or
    non-Guidelines-based deviation because the Guide-
    lines, when applied in this case, are not justified in
    terms of 3553(a) and all of the factors listed.

       So, I think the “sufficient but not greater than nec-
    essary” to accomplish those purposes really is lan-
    guage which we use to answer that question of
    whether there is in fact a need to impose the Guide-
    line range or something less or something more.

      But I think it is clear, at least in my mind, and it
    will be my view until I am persuaded by the Court
4018                UNITED STATES v. ZAVALA
      of Appeals or the Supreme Court that I am incorrect,
      that we start with the Guideline range and then work
      from that to determine whether there are facts in this
      case unique to this case which justify the Court in
      disregarding the Guideline range, or at least deviat-
      ing from the Guideline range in some fashion.

The district court then went on to consider the 18 U.S.C.
§ 3553(a) factors and came to the ultimate conclusion that
Zavala’s sentence should be thirty years’ imprisonment, rather
than imprisonment for life. The court then stated that the dif-
ference would amount to no more than a one-level reduction
of Zavala’s criminal offense level according to the Guideline
table.3

  Zavala then appealed.

      JURISDICTION AND STANDARDS OF REVIEW

   The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a) because Zavala’s claim here is that
the sentence was imposed in violation of law due to the dis-
trict court’s misconception that the calculated Guideline range
was the presumptive sentence. See United States v. Beck, 418
F.3d 1008, 1011, 1016 (9th Cir. 2005); see also United States
v. Sahanaja, 430 F.3d 1049, 1050 (9th Cir. 2005); United
States v. Cirino, 419 F.3d 1001, 1002 (9th Cir. 2005) (per
curiam).

   “[A]fter Booker we continue to review the district court’s
interpretation of the Sentencing Guidelines de novo, the dis-
trict court’s application of the Sentencing Guidelines to the
facts of [a] case for abuse of discretion, and the district court’s
factual findings for clear error.” United States v. Cantrell, 433
F.3d 1269, 1279 (9th Cir. 2006) (internal quotation marks
  3
   See USSG Ch.5, Pt.A.
                   UNITED STATES v. ZAVALA                  4019
omitted, second alteration in original). Similarly, we review
the district court’s construction of the sentencing statute—18
U.S.C. § 3553(a)—de novo. See United States v. Cabaccang,
332 F.3d 622, 624-25 (9th Cir. 2003) (en banc); United States
v. Auld, 321 F.3d 861, 863 (9th Cir. 2003). And, we review
the ultimate sentence for reasonableness. See Booker, 543
U.S. at 264, 125 S. Ct. at 767; Cantrell, 433 F.3d at 1280.

                        DISCUSSION

  As we have already noted, Zavala asserts that his sentence
was legally improper because the district court’s whole
approach was adversely affected when it treated the Guideline
calculated sentence as the presumptive sentence. In fact, he
asserts, even treating it as a starting point was legal error. We
agree in part.

   The Guidelines are, no doubt, entitled to credence. They are
an attempt to indicate that, based on experience, in the mine
run of cases a defendant who has a certain kind of background
and who has participated in a certain kind of crime in a certain
way should receive a sentence within a certain range. There
can be many, many differences between defendants and that
is why “in the mine run” is central to the above statement.

   [1] We know, of course, that the Guidelines are not, and
cannot be, binding on sentencing judges. Rather, a judge must
consider many things besides the Guidelines themselves, that
is: “the nature and circumstances of the offense and the his-
tory and characteristics of the defendant”; “the need for the
sentence imposed . . . to reflect the seriousness of the offense,
to promote respect for the law, . . . to provide just punishment
for the offense,” to deter, “to protect the public,” and to pro-
vide rehabilitation; “the kinds of sentences available”; the
need to avoid sentencing disparities; and the need to provide
victims with restitution. 18 U.S.C. § 3553(a)(1), (2), (3), (6),
(7). But in that regard, the Sentencing Commission presum-
ably considered all of those factors when it proposed the
4020               UNITED STATES v. ZAVALA
Guideline ranges—indeed, it had to do so and it says that it
did. See 28 U.S.C. § 994; USSG §1A1.1 & ed. n.

   [2] And in ultimately upholding the constitutionality of the
Guidelines, the Supreme Court stated: “Without the ‘manda-
tory’ provision, the Act nonetheless requires judges to take
account of the Guidelines together with other sentencing
goals.” Booker, 543 U.S. at 259, 125 S. Ct. at 764. Thereafter
the Court went on to say:

    As we have said, the Sentencing Commission
    remains in place, writing Guidelines, collecting
    information about actual district court sentencing
    decisions, undertaking research, and revising the
    Guidelines accordingly. The district courts, while not
    bound to apply the Guidelines, must consult those
    Guidelines and take them into account when sen-
    tencing.

Id. at 264, 125 S. Ct. at 767 (citation omitted); see also Can-
trell, 433 F.3d at 1279 (“[T]he Guidelines are now adviso-
ry.”).

   That said, we must consider how a district court should
“consult” and use the advisory Guideline calculation when it
decides a case. In doing so, let us first say what this issue is
not: It is not a question of whether a reviewing court should
entertain a presumption that a sentencing decision which does
fall within the Guideline range is reasonable. Many have said
that reviewing courts should do just that. See United States v.
Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam);
United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006);
United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006);
United States v. Welch, 429 F.3d 702, 705 (7th Cir. 2005);
United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.), cert.
denied, ___ U.S. ___, 126 S. Ct. 840, 163 L. Ed. 2d 715
(2005); see also United States v. Mares, 402 F.3d 511, 519
(5th Cir.) (if discretion exercised properly, a Guideline range
                    UNITED STATES v. ZAVALA                    4021
sentence rarely unreasonable), cert. denied, ___ U.S. ___, 126
S. Ct. 43, 163 L. Ed. 2d 76 (2005). Contra United States v.
Jimenez-Beltre, ___ F.3d ___, ___, 2006 WL 562154, at *2
(1st Cir. Mar. 9, 2006) (en banc) (no presumption); United
States v. Cooper, 437 F.3d 324, 331-32 (3d Cir. 2006) (same);
United States v. Crosby, 397 F.3d 103, 114-15 (2d Cir. 2005)
(same), abrogated in part on other grounds by United States
v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005). We have not yet
opined on that question, and will not do so now. We will
focus solely on the issue of how a district court should
approach its duties.

   [3] In that respect, we have already said that a district court
should use the Guidelines as a “starting point.” Cantrell, 433
F.3d at 1280; see also United States v. Menyweather, 431
F.3d 692, 696-97 (9th Cir. 2005). But what is that? Is it the
same as a presumption? We think not; at least not in a legal
sense. One can use the word “presumption” in a rather loose
or colloquial sense. “Dr. Livingstone, I presume,” is a fairly
weak statement as far as the law is concerned. So too is
merely venturing that something is so, or assuming it so based
on limited information. In law, once we start talking about
presumptions, we usually mean something more than that.
Certainly, there can be a “bursting bubble” presumption,
which disappears if anything to the contrary is placed before
the court. See Nunley v. City of L.A., 52 F.3d 792, 796 (9th
Cir. 1995). Then, there can be a mandatory conclusive pre-
sumption, which precludes any contrary information from
being placed before the court. See United States v. Warren, 25
F.3d 890, 897 (9th Cir. 1994). In between are mandatory
rebuttable presumptions, which always have some weight
although other information may well overcome them in a par-
ticular case.4 See id.
  4
   We, of course, do not overlook permissive presumptions, which can
actually be called permissive inferences. McLean v. Moran, 963 F.2d
1306, 1308 (9th Cir. 1992). Those are not of concern here.
4022                 UNITED STATES v. ZAVALA
   In this area, were a presumption proper, we suppose it
would be a mandatory rebuttable presumption. But even that
is more than a mere starting point because it gives particular
weight to the thing presumed. It would indicate that the
Guideline range is to be used unless (by some evidentiary
standard) a party can prove the contrary. Id. That is much
more than a mere consult for advice, and the Guidelines are
to be no more than that. See Booker, 543 U.S. at 264, 125
S. Ct. at 767. If a district court presumed that the sentence
should be a Guideline range sentence, it would thereby make
it much more than something to be consulted and would give
it much heavier weight than § 3553(a) now does.5 That leaves
it as a factor in the sentencing alchemy. Id.

   [4] On the other hand, when faced with a statute with its
own sentencing range—say distribution of 50 grams or more
of methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(A), with
punishment of imprisonment for not less than 10 years and
not more than life—the court’s consideration of the proper
sentence must start somewhere. In the above example, to say
that should be 10 years or life makes very little sense. We are
satisfied that it is highly unlikely that a sentencing court
would (or could) approach its task in that manner. But for the
court to start with the advice that it must consider—the Guide-
line calculation—makes a good deal of sense. That is at least
a point that has been fixed after consideration of the various
sentencing factors in § 3553(a). And if there is more informa-
tion about the particular individual before the court, nothing
discourages the consideration of that; nor can anything dis-
courage it. To do so would come parlously close to reinstitut-
ing the very rigid restraints on sentencing that caused the
unpruned sentencing statute to be unconstitutional in the first
place. See Booker, 543 U.S. at 233, 125 S. Ct. at 750 (noting
  5
   A different approach would tend to make the adjective “mandatory”
renascent. See United States v. Strange, 370 F. Supp. 2d 644, 650 & n.7
(N.D. Ohio 2005); Simon v. United States, 361 F. Supp. 2d 35, 40-41
(E.D.N.Y. 2005).
                    UNITED STATES v. ZAVALA                  4023
that if the Guidelines had been “merely advisory provisions”
they would not have been constitutionally defective, but,
unfortunately, they were “mandatory and binding”); see also
United States v. Kortgaard, 425 F.3d 602, 605 (9th Cir.
2005). Simply put, a presumption at the district court would
give undue weight to the Guidelines. The dangers averted by
declaring them to be merely advisory would become recrudes-
cent.

   Some might say that this is just semantics and that the same
process will take place regardless of what we call it, but that
is unduly cynical. We recognize that when one chooses a
starting point, if nothing appears that would suggest move-
ment beyond that point, it also becomes the finishing point.
Thus, in that instance, it does look a bit like a presumption.
Still, it only looks that way because in that discrete instance
there is a single possible reasonable sentence pointed to. That
is an exception.

   Yet that exception does more than test the rule; it truly does
prove it. While an appellate court will review the sentencing
result to see if it comes within the extended territory of rea-
sonableness, and will merely conduct a periplus of the borders
of that territory, the district court has a very different charge.
It is sentencing an individual, and its task is to attempt to find
the most reasonable sentence for that person within the terri-
tory of all possible reasonable sentences. That difference in
charge is central; it is not simply semantical. The difference
in approach can be captured in the difference between starting
points and presumptions. The former bespeak a mind open to
all of the nuances and possibilities of the human condition
that district judges are so good at perceiving. The latter
bespeaks a mind which is rather closed unless it can be pried
open by something truly extraordinary. It harkens back to
Guideline “departures,” which were expected to be quite
extraordinary. See USSG §1A1.1 ed. n.4(b). To put it another
way, even though it is very likely that the Guideline calcula-
tion will yield a site within the borders of reasonable sentenc-
4024                UNITED STATES v. ZAVALA
ing territory, that still does not mean either that there are no
other sites within those borders, or that one of them will not
prove to be the most reasonable sentence for the particular
individual, or that the district court should resist being led to
another site, or that the district court should not strive to reach
the best site.

   [5] If a district court does show a kind of resistence and,
instead, makes the Guideline calculation the presumptive sen-
tence, it will commit legal error by misapplying § 3553(a),
which now makes the Guideline a, but only a, factor to be
considered. It will fail to embrace the discretion that it has,
which is to reach the right answer to the sentencing decision
rather than a merely plausible answer. Perhaps we will never
know whether the answer reached is actually better or worse
than the Guideline calculation, but that is true whenever there
is discretion. We are neither beasts nor angels, and our power
to do good always entails the possibility that something ill
will result.

   [6] In short, Booker has resuscitated the much-lamented
discretion that the sentencing statute seemed to take away
from district courts, and has at least partially restored that hal-
cyon condition that district judges have longed for these many
years. District courts neither should, nor can, ignore that by
placing undue weight on the Guideline portion of the sentenc-
ing chemistry. They must properly use the Guideline calcula-
tion as advisory and start there, but they must not accord it
greater weight than they accord the other § 3553(a) factors.
Rather, they must consider all of the information before them,
as they used to do, and then reach for the correct sentence
under all of the circumstances. For our part, we will then
review the ultimate result for reasonableness. See Booker, 543
U.S. at 264; 125 S. Ct. at 767; Cantrell, 433 F.3d at 1280-81.

   That said, we must consider what the district court did in
this case. The court thoughtfully attended to Zavala’s sentenc-
ing, considering all of the relevant § 3553(a) factors. And yet,
                   UNITED STATES v. ZAVALA                 4025
we cannot say with any confidence that the district court did
not treat the Guideline calculation as a presumptive sentence,
rather than a mere “starting point.”

   The sentencing transcript leaves us with the unsettling feel-
ing that the district court viewed the Guideline calculation not
as one of several factors to be considered equally, but as a
locus from which to deviate. The court repeatedly referred to
a process of “departing” from the Guideline range. More trou-
bling still, the court placed the onus on Zavala to provide rea-
sons for deviating downward from the Guideline range,
opining, “I think the burden is upon, I think, the Defense to
at least explain to me what those justifications are and what
those factors are that will justify the Court in imposing a sen-
tence short of life imprisonment.”

   [7] In essence, it appears the district court treated the
Guideline calculation as a presumptive sentence from which
it had discretion to depart, if the defendant provided satisfac-
tory reasons. The court’s approach brings us perilously close
to the mandatory Guidelines regime squarely rejected by the
Supreme Court in Booker. We therefore hold that the district
court erred in sentencing Zavala.

   [8] Zavala objected to the district court’s characterization
of the Guideline calculation as a presumptive sentence. Where
a defendant has preserved an error of a nonconstitutional
nature, we will reverse unless the error is harmless, i.e., “un-
less it is more probable than not that the error did not materi-
ally affect the verdict.” United States v. Gonzales-Flores, 418
F.3d 1093, 1099 (9th Cir. 2005) (internal quotation marks
omitted). The government bears the burden of demonstrating
harmlessness, “and in the rare case in which we find ourselves
in equipoise as to the harmlessness of the error, reversal is
required.” Id. The government cannot meet its burden of
showing that the error here was harmless. We must vacate
Zavala’s sentence and remand to the district court for resen-
tencing.
4026                UNITED STATES v. ZAVALA
                        CONCLUSION

   In the post-Booker sentencing world, district courts have an
obligation to consult the Sentencing Guidelines. But a Guide-
line calculation is simply one factor to be considered when
selecting the most appropriate sentence for a particular defen-
dant. Nothing in 18 U.S.C. § 3553, as it stands after Booker,
indicates that the Guidelines are to be given any greater
weight than their fellow sentencing factors.

   Here, the district court gave the Guideline calculation exag-
gerated weight, treating it as a presumptive sentence from
which the court was “free to depart.” This was error. Because
we are not satisfied that the error was harmless, we vacate
Zavala’s sentence and remand to the district court for resen-
tencing.

  VACATED and REMANDED.



FERNANDEZ, Circuit Judge, Dissenting:

   I respectfully dissent because it is quite clear to me that the
district court simply used the Sentencing Guideline calcula-
tion as a starting point, and we have already declared that it
is proper for a court so to do. See United States v. Cantrell,
433 F.3d 1269, 1280 (9th Cir. 2006); see also United States
v. Menyweather, 431 F.3d 692, 696-97 (9th Cir. 2005).

   I recognize that the district court’s language was not
entirely felicitous. That is not surprising because this sentenc-
ing came during the first few months after Booker was
decided. Still and all, despite the use of the word “presump-
tion,” the district court explained that it meant “starting point”
when it said that. Similarly, the district court used the word
“departure,” which was unfortunate because that implies
something more rigid than the regime we now live in. But,
                   UNITED STATES v. ZAVALA                  4027
even there, the court indicated that it was merely grasping for
a label, for it quickly added “or . . . deviation.”

   As I see it, the district court meant what it said; after all,
it did deviate from the strict Guideline calculation, although
Zavala had personally advanced the methamphetamine con-
spiracy by selling at least 42 pounds of a mixture or substance
containing methamphetamine. Were I in doubt, I would take
the district court at its word, as I think we ought generally to
do. See McGuckin v. Smith, 974 F.2d 1050, 1056 (9th Cir.
1992), overruled in part on other grounds by WMX Techs.,
Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc);
Cont’l Connector Corp. v. Houston Fearless Corp., 350 F.2d
183, 189 (9th Cir. 1965).

  That being so, while I cannot say that I am in disagreement
with the presumption exegesis in the per curiam opinion, I do
not join it. Whatever other readers of the opinion might think
of it, whether they consider its reasoning eximious or exigu-
ous, I deem it extraneous. It cannot affect my decision of this
case.

  Thus, I respectfully dissent.
