                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT         FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            September 9, 2005
                              No. 04-16339
                                                           THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D.C. Docket No. 04-00031-CR-KRS

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

     versus

MOISE MARTINEZ,

                                                       Defendant-Appellant.


                       __________________________

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

                             (September 9, 2005)

Before BIRCH, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Moise Martinez appeals his 46-month sentence for conspiracy to possess

with intent to distribute 50 grams or more of methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), and 846. Martinez argues on appeal that the

district court committed reversible error in sentencing him under the then-

mandatory United States Sentencing Guidelines (“federal guidelines”), in light of

Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),

and United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005). For the reasons set forth more fully below, we vacate Martinez’s sentence

and remand for resentencing consistent with the Supreme Court’s decision in

Booker.

      A federal grand jury returned a superseding indictment against Martinez,

charging him with the above-referenced offense. This superseding indictment did

not include a drug amount, other than the statutory amount of 50 grams or more of

methamphetamine. Martinez subsequently pled guilty to this conspiracy offense,

without the benefit of a plea agreement. Martinez, however, stipulated in a “notice

of essential elements, penalty and factual basis” (“factual basis), to the specific

amounts of drugs that he distributed. The court adjudicated him guilty.

      Prior to sentencing, a probation officer prepared a presentence investigation

report (“PSI”), which included the following description of Martinez’s offense

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conduct. In June and July 2003, agents with the Drug Enforcement

Administration (“DEA”) obtained federally authorized wiretaps of Javier Barajas,

from which they learned that Barajas and another individual were responsible for

distributing marijuana, cocaine, and methamphetamine in the Central Florida area.

Beginning in July 2003, DEA agents made seven separate controlled drug

purchases from Martinez, who was working with his father, Nicholas Martinez-

Gomez, the person who had purchased the drugs from Barajas. The PSI also

included the drug amounts to which Martinez stipulated as part of the factual

basis, that is, that he personally sold a total of 995 grams of cocaine hydrochloride,

2,682 grams of marijuana, and 162 grams of methamphetamine.

       Based on this offense conduct, the probation officer determined that

Martinez was responsible for a total equivalent amount of 525.56 kilograms of

marijuana, and set his offense level at 28, pursuant to U.S.S.G. § 2D1.1(c)(6)

(offense level applicable for offenses involving at least 400 kilograms, but less

than 700 kilograms, of marijuana).1 The probation officer also recommended a

two-level decrease in this level, pursuant to U.S.S.G. § 2D1.1(b)(6) (“safety valve

relief”), and a three-level downward adjustment, pursuant to U.S.S.G. § 3E1.1, for



       1
         The PSI calculated this total drug amount by applying the drug equivalency table in
U.S.S.G. § 2D1.1, and by converting the individual drug amounts to their marijuana equivalents.

                                               3
acceptance of responsibility. With an adjusted offense level of 23, and a criminal

history category of I, Martinez’s resulting guideline range was 46 to 57 months’

imprisonment. The probation officer also determined that no factors warranted a

departure from this guideline range. Martinez raised no objections to the PSI.

      On November 24, 2004, at sentencing, Martinez again stated that he had no

objections to the PSI’s factual statements and calculations, but he generally

objected to the court’s use of the federal guidelines, pursuant to the Supreme

Court’s decision in Blakely. The district court implicitly overruled Martinez’s

Blakely objection and adopted the PSI’s contents. Martinez then moved the court

either to depart downward from his guideline range or to sentence him at the

bottom of this range, based on (1) Martinez’s lack of a criminal history, and (2) the

fact that his father encouraged him to become involved in the conspiracy.

      Construing Martinez’s oral departure motion as one made pursuant to

U.S.S.G. § 5K2.0, the court determined that the motion had no legal basis and

denied it. After giving Martinez the opportunity to allocute, and after confirming

that neither party objected to a sentence at the low end of the guideline range, the

court sentenced him to 46 months’ imprisonment, 3 years’ supervised release, 75

hours’ community service, and a $100 special assessment fee. The court also

denied Martinez’s motion to surrender at a later date because (1) the government

                                          4
had not consented to self-surrender, and (2) Martinez had continued using drugs

while he was on supervised release pending sentencing. Martinez raised no

objections to the court’s pronouncement of sentence, other than those he raised

during the hearing.

      Filing his appeal brief after the Supreme Court issued its decision in

Booker, Martinez argues on appeal that the court plainly erred in sentencing him

based on the then-mandatory federal guidelines. Martinez contends that the court

violated the Sixth Amendment by holding him accountable for more than the

amount of drugs that was charged in his indictment, and by determining that it

could not depart based on the fact that Martinez’s father encouraged him to join

the conspiracy. Martinez also asserts that his substantial rights were violated

because his sentence was “based in part upon misinformation of a constitutional

magnitude,” and because the district court should have been given the opportunity

to sentence him properly under Booker. Moreover, he summarily asserts that his

sentence resulted in manifest error. Finally, Martinez generally contends that

resentencing is mandated because (1) the federal drug laws under which he was

sentenced are “violent and aggressive,” and (2) his offense conduct involved non-

violent criminal activity.




                                         5
      Although Martinez argues on appeal that our review is only for plain error,

he properly preserved both his constitutional and non-constitutional Booker claims

in the district court by citing to Blakely in his objection at sentencing. See United

States v. Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005) (concluding that a

defendant either must (1) refer to the Sixth Amendment; (2) Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or another related

case; (3) assert his right to have the jury decide the disputed fact; or (4) raise a

challenge to the role of the judge as factfinder to preserve a Blakely/Booker

claim). Because Martinez timely raised a Blakely objection in the district court,

we review his Blakely/Booker claim on appeal de novo, but reverse only for

harmful error. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)

(citation omitted). Under harmless-error review, the government carries the

burden of proof. Id.

      In Apprendi, the Supreme Court held 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.” Id., 530 U.S. at 490, 120 S.Ct. at 2362-63. Before Martinez’s sentencing

hearing, the Supreme Court revisited that rule in Blakely, in the context of

Washington state’s sentencing guideline scheme, and clarified that “the ‘statutory

                                           6
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 . . .. In other words, the relevant ‘statutory maximum’ is not the

maximum sentence a judge may impose after finding additional facts, but the

maximum he may impose without any additional findings.” Blakely, 542 U.S. at

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

      Applying these principles, the Supreme Court held that Blakely’s

sentence—which was enhanced under the state guidelines based on the sentencing

court’s additional finding by a preponderance of the evidence that Blakely

committed his kidnaping offense with deliberate cruelty—violated the Sixth

Amendment. Id. at ___, 124 S.Ct. at 2534-38. In a footnote, however, the Court

explicitly remarked that “[t]he Federal Guidelines are not before us, and we

express no opinion on them.” Id. at ___ n.9, 124 S.Ct. at 2538 n.9.

      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 Supreme Court held that the mandatory nature of

the federal guidelines rendered them incompatible with the Sixth Amendment’s

                                           7
guarantee to the right to a jury trial. Id. at ___,125 S.Ct. at 749-51. In extending

its holding in Blakely to the 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.

      In a second and separate majority opinion, the Court in Booker concluded

that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of

1984, the appropriate remedy was to “excise” two specific sections—18 U.S.C.

§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)

and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de

novo review of departures from the applicable guideline range)—thereby

effectively rendering the Sentencing Guidelines advisory only. Id. at ___, 125

S.Ct. at 764. Thus, the guidelines range is now advisory; it no longer dictates the

final sentencing result but instead is an important sentencing factor that the

sentencing court is to consider, along with the factors contained in 18 U.S.C.

§ 3553(a). Id. at ___, 125 S.Ct. at 764-65.

      Following the Supreme Court’s decision in Booker, in United States v.

Reese, 397 F.3d 1337 (11th Cir. 2005), we re-examined on remand a defendant’s

                                          8
guideline sentence that had been enhanced, over objection, because the defendant

had possessed a firearm in connection with another felony offense. Id. at 1337.

Concluding that the defendant’s sentence was in violation of the Sixth

Amendment, we vacated and remanded his sentence and ordered resentencing

consistent with the Supreme Court’s opinions in Booker. Id. at 1338.

      In Paz, we similarly examined a Blakely/Booker challenge to a guideline

enhancement based on the district court’s factual finding on an amount of loss

involved in an offense. Paz, 405 F.3d at 947. We determined that the defendant’s

sentence was erroneous because (1) it was based on judicially determined facts

that were not admitted by the defendant, and (2) it was enhanced under a

mandatory guidelines system. Id. at 948. Moreover, we concluded that the

government could not prove that these errors were harmless because the

sentencing transcript clearly showed that, had the district court treated the federal

guidelines as advisory, the defendant’s term of imprisonment would have been

shorter. Id. at 948-49. We, therefore, vacated and remanded Paz’s sentence for

resentencing consistent with Booker. Id. at 949.

      Here, the court set Martinez’s base offense level at 28, pursuant to U.S.S.G.

§ 2D1.1(c)(6), based on the fact that Martinez was responsible for a total

equivalent amount of 525.56 kilograms of marijuana. Nevertheless, Martinez

                                          9
admitted this drug amount as part of his factual basis, and by not disputing this

fact at sentencing. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.

2005) (concluding that sentence enhancement based on drug quantity did not

violate Booker where the defendant did not dispute the facts in the PSI); United

States v. Burge, 407 F.3d 1183, 1191 (11th Cir. 2005) (rejecting Booker challenge

under plain-error review because the defendant admitted facts relating to his

relevant conduct by abandoning at sentencing his objections to various factual

statements in the PSI). Thus, the court’s determination of drug amount did not

result in a Sixth Amendment violation under Booker.

      As the government concedes, however, the court sentenced Martinez with

the understanding that the federal guidelines were mandatory, instead of advisory.

A non-constitutional Booker error, therefore, occurred. See Shelton, 400 F.3d at

1330-31 (concluding that statutory error occurs when the district court sentences a

defendant “under a mandatory [g]uidelines scheme, even in the absence of a Sixth

Amendment enhancement violation”).

      We have determined that there are two harmless-error standards of review

for Booker errors, dependent on whether the error is constitutional or statutory.

See United States v. Mathenia, No. 04-15250, slip op. at 2328 (11th Cir. May 23,

2005). We explained in Paz—an appeal involving a constitutional Booker

                                         10
error—that, when a constitutional Booker error occurs, the government only may

establish that it was harmless by showing, under a heightened standard, that “it is

clear beyond a reasonable doubt that the error complained of did not contribute to

the sentence obtained.” Paz, 405 F.3d at 948 (internal quotation and marks

omitted). On the other hand, in Mathenia, we determined that

       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 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.

Mathenia, No. 04-15250, slip op. at 2328-29 (internal quotations and marks

omitted).2

       We further explained in Mathenia that “[t]he non-constitutional harmless

error standard is not easy for the government to meet. It is as difficult for the

government to meet that standard as it is for a defendant to meet the third-prong

prejudice standard for plain error review.” Id. at 2329. Nevertheless, we

determined that the government had met this burden by citing to a statement by the

district court that, if the Supreme Court determined that the federal guidelines

       2
          Phrasing this test conversely, we also have explained that non-constitutional error is
harmless unless it “resulted in actual prejudice because it had substantial and injurious effect or
influence in determining the [result].” See United States v. Gallegos-Aguero, No. 04-14242, slip
op. at 2308 (11th Cir. May 18, 2005) (quoting United States v. Guzman, 167 F.3d 1350, 1353
(11th Cir. 1999)); see also United States v. Petho, No. 04-15412, slip op. at 2310-11 (11th Cir.
May 18, 2005) (same).

                                                11
were unconstitutional as mandatorily applied, the district court “nonetheless

[would] consider the guidelines as—for their persuasive value or as advisory, and

the sentence [the court] would impose would be the same.” Id. We, therefore,

concluded in Mathenia that the government “demonstrated with fair assurance that

the district court’s error of applying the guidelines in a mandatory fashion did not

affect, or had but a slight affect, on [the defendant’s] ultimate sentence.” Id. at

2329-30.3

       Because this case involves only a non-constitutional Booker error, we must

apply the test discussed in Mathenia, instead of the “beyond a reasonable doubt”

test discussed in Paz. The district court did not state that it would have imposed a

lighter sentence, but for the mandatory nature of the federal guidelines. However,

the court, without objection, sentenced Martinez at the bottom of his guideline

range. But see United States v. Fields, No. 04-12486, slip op. at 2301 (11th Cir.

May 16, 2005) (concluding, under plain-error review, that the fact that the

defendant was sentenced at the bottom his mandatory guideline range, without

more, is insufficient evidence for the defendant to satisfy the prejudice prong).


       3
          In reaching this conclusion in Mathenia, we cited to our decision in United States v.
Robles, No. 04-13598, slip op. at 2257-58 (11th Cir. May 10, 2005), in which we
concluded—under the more stringent harmless error test for constitutional Booker error—that the
error was harmless where the court unequivocally stated that its sentence would be the same even
if the federal guidelines only were advisory. See Mathenia, No. 04-15250, slip op. at 2329.

                                              12
Moreover, unlike the facts in Mathenia and Robles, the government has not cited

to evidence in the record showing that the court would have imposed an identical

sentence if it had been proceeding under an advisory-guideline system.

      The record, therefore, does not show “with fair assurance that the sentence

was not substantially swayed by the error.” See Mathenia, No. 04-15250, slip op.

at 2328-29. The government has not shown that Martinez’s substantial rights were

not violated, and, thus, it has not proven that the Booker error was harmless. See

id.; see also United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir. 2005)

(concluding that, despite the district court’s grant of a motion for a downward

departure for substantial assistance, pursuant to U.S.S.G. § 5K1.1, the government

could not show that the court’s mandatory application of the guidelines in

sentencing the defendant was harmless, because the § 5K1.1 motion only gave the

court limited discretion in considering the defendant’s assistance).

      Accordingly, we conclude that the court’s error in sentencing Martinez was

not harmless. We, therefore, vacate and remand Martinez’s sentence for

resentencing consistent with Booker.

      VACATED AND REMANDED.




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