                                                           [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT           FILED
                       ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                              No. 02-10368                     JAN 5, 2007
                        ________________________            THOMAS K. KAHN
                                                                 CLERK
                    D.C. Docket No. 99-08125-CR-DTKH

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

    versus

JUAN ARROYA,

                                                             Defendant,
WANDA TIRADO,
GARLAND HOGAN,
GARY PIERCE,
ZANE BALSAM,
ALAN RICHARD LEWIS,

                                                         Defendants-Appellants.

                       __________________________

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

                              (January 5, 2007)
                              ON REMAND FROM THE
                          UNITED STATES SUPREME COURT

Before BIRCH, KRAVITCH and FARRIS,* Circuit Judges.

PER CURIAM:

        Wanda Tirado, Garland Hogan, Gary Pierce, Zane Balsam, and Alan

Richard Lewis were convicted of bilking investors out of their money in a

fraudulent viatical investment company scheme. At sentencing, each defendant

challenged their sentences under Apprendi v. New Jersey, 530 U.S. 466 (2000).

The court overruled the objections and sentenced the defendants separately to the

following terms of imprisonment: 262 months for Tirado; 324 months for Hogan;

240 months for Pierce; 360 months for Balsam; and 151 months for Lewis. Each

appealed their convictions and sentences, again raising the Apprendi claim.1 Upon

review, we affirmed the convictions and sentences. United States v. Arroya, No.

02-10368 (11th Cir. Jun. 24, 2004).


        *
          Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
        1
          Hogan neither raised the issue in his initial brief nor adopted it from another appellate brief.
Following our decision affirming the convictions and sentences, each defendant moved for rehearing.
We granted Hogan’s motion to adopt the motions, arguments and pleadings of his codefendants in
connection with that motion. Contrary to Hogan’s assertion, the permission to adopt arguments filed
after the opinion issued and in connection with a motion for rehearing does not relate back to the
issues raised in the initial briefs on appeal. Nevertheless, because we conclude that there was Booker
error at sentencing, we exercise our discretion and address the issue as if it was preserved. United
States v. Rivera Pedin, 861 F.2d 1522, 1527 n.9 (11th Cir. 1988).

                                                    2
      Thereafter, the Supreme Court issued its decision in United States v.

Booker, 543 U.S. 220 (2005), holding that the Sixth Amendment required that any

fact that increased a defendant’s sentence beyond the maximum authorized by the

facts established by a jury verdict must be admitted by the defendant or proven to

a jury beyond a reasonable doubt. The Court further concluded that the

Sentencing Guidelines were not mandatory, but were advisory and were one factor

to consider in imposing a reasonable sentence in light of the sentencing factors in

18 U.S.C. § 3553(a).

      Tirado, Hogan, Pierce, Balsam, and Lewis filed petitions for certiorari, each

raising Booker issues. The Supreme Court granted cert. and vacated and

remanded the appeals in light of the Booker decision. On remand, after a thorough

review of the record, we re-affirm the convictions for the reasons stated in our

earlier opinion. We now turn to the sentences imposed.

      By raising Apprendi at sentencing and on direct appeal, the Booker

argument has been preserved, and we review the claim de novo. United States v.

Paz, 405 F.3d 946, 948 (11th Cir. 2005); United States v. Dowling, 403 F.3d 1242,

1246 (11th Cir.), cert. denied, 126 S.Ct. 462 (2005). In conducting this review, we

will vacate and remand unless the government can show that the error was

harmless. United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005);

                                         3
Paz, 405 F.3d at 948. To show that a constitutional error was harmless, the

government must show that the error did not affect the defendant’s substantial

rights, or in other words, “where it is clear ‘beyond a reasonable doubt that the

error complained of did not contribute to the [sentence] obtained.’” Mathenia, 409

F.3d at 1291-92. To show statutory harmless error, the government faces a less

demanding standard but must show that, viewing the proceedings in their entirety,

the error had no effect or a very slight effect on the sentence. Id. Our precedent

on this burden is clear: the government must show that the court would not have

imposed a lesser sentence under an advisory guidelines system. United States v.

Glover, 431 F.3d 744, 749-50 (11th Cir. 2005).

      Here, the government has not met its burden. As to all defendants, the court

made factual findings that went beyond those found by the jury. Moreover, in

each case, the court applied the guidelines in a mandatory fashion.

      After a thorough review of the record, we conclude that, in light of the

court’s statements at sentencing, the government cannot show that the Booker

error was harmless. Accordingly, we AFFIRM the convictions and we VACATE

and REMAND for resentencing in accordance with Booker.




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