                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                 No. 04-16100                     JULY 11, 2005
                             Non-Argument Calendar              THOMAS K. KAHN
                                                                     CLERK
                           ________________________

                    D. C. Docket No. 04-00261-CR-T-27-MAP

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,
                                       versus

GUILLERMO PLATA-MORA,

                                                               Defendant-Appellant.

                           ________________________

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

                                  (July 11, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

      Appellant Guillermo Plata-Mora, through counsel, appeals his 168-month

sentence for conspiracy and possession with the intent to distribute five kilograms

or more of cocaine while aboard a vessel subject to the United States jurisdiction,
in violation of 46 App. U.S.C. § 1903(a), (g), and (j) and 21 U.S.C.

§ 960(b)(1)(B)(ii). On appeal, Plata-Mora argues that the district court erred in

denying his request for a mitigating-role reduction. He also argues that the court

committed reversible error under 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), when it sentenced him under a mandatory

Guidelines system.

Mitigating-Role Reduction

      “[A] district court’s determination of a defendant’s role in the offense is a

question of fact to be reviewed under the clearly erroneous standard.” United

States v. De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc). A defendant

who is “plainly among the least culpable of those involved in the conduct of a

group,” is entitled to a four-level reduction for his minimal role in the offense.

U.S.S.G. § 3B1.2(a), comment. (n. 4). A defendant “who is less culpable than

most other participants, but whose role could not be described as minimal” is

entitled to a two-level reduction for his minor role. U.S.S.G. § 3B1.2(b), comment.

(n. 5). “The proponent of the downward adjustment . . . always bears the burden of

proving a mitigating role in the offense by a preponderance of the evidence.” De

Varon, 175 F.3d at 939.



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      In De Varon, we established a two-part test for whether a mitigating-role

reduction is appropriate. See id. at 940-45. In applying the first prong, “the district

court must measure the defendant’s role against the relevant conduct for which [he]

has been held accountable.” Id. at 940. “[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 [or minimal] 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. “[W]hen a drug courier’s relevant conduct

is limited to [his] own act of importation, a district court may legitimately conclude

that the courier played an important or essential role in the importation of those

drugs.” Id. at 942-43. Critically, the first prong of De Varon is often dispositive.

See Id. at 945. “Only if a defendant can establish that [he] played a relatively

minor role in the conduct for which [he] has already been held

accountable . . . should the district court grant a downward adjustment for minor

role in the offense.” Id. at 944.

      In the second prong of the De Varon analysis, the district court may assess a

defendant’s relative culpability vis-a-vis “other participants in the relevant

conduct.” “The conduct of participants in any larger criminal conspiracy is

irrelevant.” However, “[t]he fact that a defendant’s role may be less than that of



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other participants engaged in the relevant conduct may not be dispositive of role in

the offense, since it is possible that none are minor or minimal participants.” Id.

The district court has “considerable discretion in making this fact-intensive

determination.” United States v. Boyd, 291 F.3d 1274, 1277-78 (11th Cir. 2002).

      Here, the record supports the district court’s findings that the conduct

attributed to Plata-Mora was identical to his actual conduct and that he did not

demonstrate that he was less culpable than his codefendants. Accordingly, we

conclude that the district court did not clearly err, and we affirm its denial of Plata-

Mora’s request for a mitigating-role reduction.

Blakely/Booker

      When an appellant has timely objected to the application of the Sentencing

Guidelines, we review his Blakely/Booker claim “in order to determine whether the

error was harmless.” United States v. Mathenia, No. 04-15250, slip op. at 2328

(11th Cir. May 23, 2005).

      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 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.

Id. at 2328-29 (quotations and alterations omitted). “It is as difficult for the

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



                                            4
prejudice standard for plain error review.” Id. at 2329; see also United States v.

Rodriguez, 398 F.3d 1291, 1301 (11th Cir.) (describing the defendant’s burden

under plain-error analysis), petition for cert. filed, (U.S. Feb. 23, 2005)

(No. 04-1148).

       In Blakely, the Supreme Court held that, under the state of Washington’s

mandatory sentencing guidelines system, the imposition of a sentencing

enhancement based upon facts neither admitted by the defendant nor found by the

jury violated the defendant’s Sixth Amendment right to a jury trial. 542 U.S. at

___, 124 S. Ct. at 2534-38. In Booker, the Supreme Court extended this holding to

the Federal Sentencing Guidelines. 543 U.S. at ___, 125 S. Ct. at 760. To cure the

Sixth Amendment violation in Booker, the Supreme Court (1) excised two

statutory provisions that reinforced the mandatory nature of the Guidelines, (2)

held that the Guidelines were advisory, and (3) determined that sentences should

be reviewed on appeal for reasonableness, considering the 18 U.S.C. § 3553(a)

factors.1 Id. at ___, 125 S. Ct. at 764.


       1
         The factors set forth in § 3553(a) include, among others: “(1) the nature and circumstances
of the offense and the history and characteristics of the defendant; (2) the need for the sentence
imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect
the public from further crimes of the defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment in the most effective
manner; (3) the kinds of sentences available; . . . (6) the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar conduct;
and (7) the need to provide restitution to any victims of the offense.” 18 U.S.C. § 3553(a).

                                                  5
      We have held that there could be two distinct Booker errors – (1) the error of

imposing a sentencing enhancement based on judicial findings that go beyond the

facts admitted by the defendant or found by the jury, or “constitutional error”; and

(2) the error of being sentenced under a mandatory guidelines system, or “statutory

error.” See Mathenia, No. 04-15250, slip op. at 2328; United States v. Shelton, 400

F.3d 1325, 1329-1334 (11th Cir. 2005).

      In the preserved error context where the government bears the burden of

proving that the statutory error is harmless, we have affirmed a defendant’s

sentence, despite the Booker error when the district court stated its sentence would

be the same even if the Supreme Court affirmed the decision in Booker and held

that “under Blakely, the United States Sentencing Guidelines [were]

unconstitutional . . . .” See Mathenia, No. 04-15250, slip op. at 2328-30.

      Because Plata-Mora does not raise any constitutional Booker errors, our

review is limited to whether the district court committed a non-constitutional

Booker error in sentencing Plata-Mora under the Guidelines as mandatory.

Because the district court sentenced Plata-Mora at the bottom of his guidelines

range and did not offer an indication that its sentence would have been the same if

the Guidelines were not mandatory, the government cannot show “with fair

assurance” that the mandatory nature of the Guidelines did not substantially sway



                                          6
Plata-Mora’s sentence. See Mathenia, No. 04-15250, slip op. at 2329. Therefore,

we conclude that the statutory Booker error is not harmless.

      For the foregoing reasons, we affirm the district court’s denial of Plata-

Mora’s request for a mitigating-role reduction, but we vacate Plata-Mora’s

sentence and remand this case for resentencing consistent with Blakely and Booker.

      AFFIRMED in part and VACATED and REMANDED in part.




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