                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                           OCTOBER 7, 2005
                             No. 04-16676                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 04-20192-CR-PAS

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                  versus

JORGE LUIS RIVERO,

                                                        Defendant-Appellant.


                       ________________________

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

                            (October 7, 2005)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:
      A jury convicted Jorge Luis Rivero of conspiracy to receive stolen goods, in

violation of 18 U.S.C. § 371, and possession of stolen goods, in violation of 18

U.S.C. § 659. The district court imposed a sentence of 30 months. Rivero argues

that the district court erred by admitting evidence, which the government did not

turn over until the eve of the trial, which he says violated Fed. R. Crim. P. 16. In

addition, Rivero argues that the district court violated his constitutional rights as

defined by United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), by

making extra-verdict enhancements to his sentence and sentencing him under a

mandatory guidelines scheme.

                                           I.

      On the first day of his trial, Rivero moved the district court to exclude

evidence, pursuant to Fed. R. Crim. P. 16, that the government planned to use in its

case-in-chief. He argued the evidence should be excluded because it had not been

disclosed to his counsel until the afternoon before the trial was to begin.

According to Rivero, this was the only evidence that the government had to show

which items were recovered from his warehouse and without it the government

could not prove that any items found in the warehouse were stolen from Best Buy.

(The belatedly disclosed evidence was a spreadsheet showing the items that had

been stolen from a Best Buy truck, recovered from Rivero’s warehouse and



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returned by the police to Best Buy.)

       Rule 16(a)(1)(E) states that “the government must permit the defendant to

inspect and to copy . . . documents . . . if the item is within the government’s

possession, custody, or control and: . . . (ii) the government intends to use the item

in its case-in-chief at trial.” Fed. R. Crim. P. 16(a)(1)(E). There is some question

here whether the evidence was actually in the government’s possession, custody, or

control since it apparently did not receive that evidence itself until the day before

the trial.

       However, we need not decide if there was a discovery violation here,

because even if there were, admission of the new evidence does not require

reversal because Rivero has not shown that he suffered prejudice to his substantial

rights. United States v. Rodriguez, 799 F.2d 649, 652 (11th Cir. 1986) (even if

evidence should have been excluded because of the government’s failure to

disclose it sooner, a defendant still “must show prejudice to substantial rights”).

       We said, in Rodriguez, that “actual prejudice will often turn on the strength

of the [g]overnment case.” Id. “[T]he degree to which [a defendant’s trial] rights

suffer as a result of a discovery violation is determined not simply by weighing all

the evidence introduced, but rather by considering how the violation affected the

defendant’s ability to present a defense.” United States v. Noe, 821 F.2d 604, 607



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(11th Cir. 1987). Substantial rights are violated when the defendant is “unduly

surprised and lacks an adequate opportunity to prepare a defense.” United States v.

Bueno-Sierra, 99 F.3d 375, 380 (11th Cir. 1996).

      Rivero had an adequate opportunity to prepare a defense. Well before trial

he had copies of documents showing all the items that were stolen from the truck,

items he was charged with possessing. Although the new evidence was not

disclosed to him until the day before trial, the district court twice asked if he

wanted to delay the start of the trial in order to allow him to review that evidence.

After some discussion, Rivero asked for and was given a shorter delay than the

court offered him. The government, at the district court’s urging, gave Rivero the

opportunity to interview before the trial began the witness through whom the new

evidence was presented.

      Not only did Rivero have a full opportunity to prepare his defense, but the

government also had more than enough proof to support its case, even absent the

disputed evidence. The testimony of Detective Lewis as to the photographs of the

stolen Best Buy boxes lined up wall-to-wall in Rivero’s warehouse, the bill of

lading and the manifest from the stolen Best Buy shipment found in Rivero’s

warehouse, the property receipt that noted 991 Best Buy packages in the

warehouse, and the sticker with the batch number matching the bill of lading and



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manifest overwhelmingly supported the jury’s finding of guilt without the

spreadsheet.

      Accordingly, we affirm the district court’s denial of Rivero’s motion to

exclude evidence.

                                          II.

      Rivero’s second challenge is that his constitutional rights, as explicated in

Booker, were violated during sentencing. The Presentence Investigation Report

(PSI) set the base offense level at four. Rivero received an eleven level

enhancement, pursuant to § 2B1.1(b)(1)(L), because the value of the stolen

property was more than $350,000. He also received a two level enhancement,

pursuant to § 2B1.1(b)(4)(A), because the offense involved more than minimal

planning, bringing his total offense level to seventeen. With a criminal history

category of III, the sentencing range was 30 to 37 months.

      Rivero objected to the eleven level enhancement, claiming that it would be a

violation of his constitutional rights under Blakely to use an extra-verdict finding

to make an enhancement. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531

(2004). The district court overruled the objection and sentenced Rivero to 30

months’ imprisonment.

      Where a defendant timely raised a Booker objection in the district court, we



                                           5
review the claim on appeal de novo, but reverse only for harmful error. United

States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). The burden is on the

government to show that the error was harmless. Id. The government concedes

that it cannot show that the error was harmless, and we agree.

      Rivero argues that on remand the maximum sentence he should receive is

the one that the guidelines would have required if there were no extra-verdict

enhancements. In other words, he asks us to ignore the Supreme Court’s

instructions about what should be done in the wake of its Booker decision. See

Booker, 125 S. Ct. at 769. We decline to do so. As we have explained before, on

remand for resentencing in light of Booker a district court is to apply the guidelines

in an advisory manner and fashion a reasonable sentence in light of that advice and

the 18 U.S.C. § 3553(a) factors. United States v. Davis, 407 F.3d 1269 (11th Cir.

2005); United States v. Martinez, 407 F.3d 1170 (11th Cir. 2005). Doing so does

not violate due process or ex post facto principles. See United States v. Duncan,

400 F.3d 1297, 1306–07 (2005).

      The advice the district court receives from its guidelines calculation must be

accurate, and that leads us to Rivero’s final argument. He contends that the loss

enhancement should be reduced by one point from eleven to ten. His argument is

that it was error for the district court to include the unrecovered Best Buy goods



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and the stolen truck in the calculation of loss.

      The inclusion of the unrecovered Best Buy goods is irrelevant to the loss

enhancement. The district court calculated the total amount of loss to be

$497,257.59. The defense proposed a value of approximately $50,000 for the

missing Best Buy goods. The dividing line between a ten and eleven level

enhancement is $350,000. Because subtracting $50,000 from the $497,257.29 total

yields a result that is still above $350,000, the value of the missing merchandise

does not matter. The value of the stolen truck, which is $150,000, does matter,

because its inclusion did affect the size of the enhancement.

      The district court determined by a preponderance of the evidence that the

value of the truck should be included in the amount of loss. We review the district

court’s loss calculations under the Sentencing Guidelines only for clear error.

United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005); United States v.

Dominguez, 109 F.3d 675, 676 (11th Cir. 1997).

      There was no clear error here. The truck driver provided uncontroverted

evidence that the truck was stolen. The merchandise in that stolen truck appeared

in Rivero’s warehouse within 24 hours and he was convicted by a jury of

possession of the merchandise from that stolen truck. While Rivero argues that the

most that can be established from these facts is a buyer-seller relationship between



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Rivero and whoever stole the truck, we can not say that the district court clearly

erred in finding by a preponderance of the evidence that the stolen truck was a loss

attributable to Rivero.

      Rivero’s conviction is AFFIRMED. His sentence is VACATED and

REMANDED for further proceedings consistent with this opinion.




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