                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 04-15740
                                                                 November 28, 2005
                             Non-Argument Calendar             THOMAS K. KAHN
                           ________________________                CLERK

                    D. C. Docket No. 04-00077-CR-T-25-MSS

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

EMILIO SANCHEZ CIFUENTES,

                                                              Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________
                             (November 28, 2005)


Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Emilio Sanchez Cifuentes appeals his 135-month sentence for conspiracy to

possess with intent to distribute five kilograms or more of cocaine while onboard a
vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C.

§ 1903(a), (g), (j) and 21 U.S.C. § 960(b)(1)(B)(ii). We REMAND for

resentencing and DISMISS as to his sentence appeal waiver.

                                 I. BACKGROUND

      In February, 2004, several individuals, including Cifuentes, departed

Colombia on a fishing vessel bearing the Colombian flag with the intention of

smuggling a load of cocaine. On or about 21 February 2004, a United States

aircraft spotted the boat approximately 432 nautical miles south of Acapulco,

Mexico. A United States Coast Guard cutter intercepted the boat, which was

boarded. In accordance with a bilateral agreement with the Colombian

government, law enforcement agents searched the boat. Concealed in a hidden

compartment, they found 214 bales of cocaine, weighing a total of 4,853

kilograms.

      Subsequently, Cifuentes was one of fourteen men named in a two-count

indictment. He and the others were charged with violation of 46 U.S.C. § 1903 (a),

(g), and (j) and 21 U.S.C. § 960(b)(1)(B)(ii) (Count One) and 46 U.S.C. § 1903 (a)

and (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii) (Count Two). The

indictment also included a forfeiture provision.

      Appearing before a magistrate judge at his change-of-plea hearing,



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Cifuentes, using an interpreter, agreed to plead guilty to Count One of the

indictment pursuant to a written plea agreement. As part of the plea agreement, the

government promised to move for dismissal of Count Two at the time of

sentencing.1 R2 at 11. The plea agreement contained a provision titled “Appeal of

Sentence; Waiver,” which stated:

      The defendant understands and acknowledges that defendant’s
      sentence will be determined and imposed in conformance with the
      Comprehensive Crime Control Act of 1984 and the federal sentencing
      guidelines. Defendant is also aware that a sentence imposed under the
      sentencing guidelines does not provide for parole. Knowing these
      facts, the defendant agrees that this Court has jurisdiction and
      authority to impose any sentence up to the statutory maximum set
      forth for the offense and pursuant to the sentencing guidelines and
      expressly waives the right to appeal defendant’s sentence, directly or
      collaterally, on any ground . . . except for an upward departure by the
      sentencing judge, a sentence above the statutory maximum, or a
      sentence in violation of the law apart from the sentencing guidelines;
      provided, however, that if the government exercises its right to appeal
      the sentence imposed, . . . the defendant is released from this waiver . .
      ..

R1-134 at 13.

      During the plea colloquy, the magistrate judge informed Cifuentes that his

plea agreement contained a sentence appeal wavier. R2 at 18. The magistrate

judge explained to Cifuentes that, by signing the plea agreement, he was giving up

his right to file an appeal except in “very limited circumstances.” Id. The



      1
          The district court did formally dismiss Count Two at the sentencing hearing. R3 at 9.

                                                 3
magistrate judge informed Cifuentes that he could file an appeal only if: (1) the

government filed an appeal, (2) the court imposed a sentence in excess of the

statutory or Sentencing Guidelines maximum, (3) the sentence was in violation of

the law apart from the Sentencing Guidelines, or (4) the issue was raised under

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004).2 Id. at 18-19.

        The magistrate judge also asked Cifuentes if he understood that, outside of

these limited circumstances, the appeals court in all likelihood would reject the

appeal without reaching the merits because of his waiver, to which Cifuentes

replied, “Yes.” Id. at 19. To confirm this, the magistrate judge asked Cifuentes if

he understood his right to file an appeal, to which Cifuentes replied, “Yes.” Id. at

20. The magistrate judge then proceeded to ask him if he had “voluntarily

waive[d] that right as agreed to in this plea agreement?” Cifuentes again replied in

the affirmative. Id. The magistrate judge then entered a report and

recommendation recommending that the district court accept the plea agreement.

Pursuant to the report and recommendation, the district court accepted the guilty

plea.

        The Presentence Investigation Report (“PSI”) calculated a base offense level



        2
        The government stated on the record that it did not intend to have Cifuentes waive any
issues with respect to Blakely. R2 at 9. The government did not foresee any Blakely or
enhancement issues in the case. Id.

                                              4
of 38, a two-level decrease for meeting the safety-valve provisions, a two-level

reduction for acceptance of responsibility, and a one-level reduction for a timely

guilty plea, for a total offense level of 33. Cifuentes’s criminal history category

was I, and the PSI calculated a sentence between 135 to 168 months of

imprisonment. Cifuentes did not object to any of the PSI’s calculations.

      Even though Cifuentes had not objected to the PSI’s failure to recommend a

minor-role reduction, at the sentencing hearing the district judge stated for the

record that it would have overruled any such objection in light of the controlling

law and the quantity of drugs involved. R3 at 4-5. As to the length of the

sentence, the court stated that it intended to treat Cifuentes the same as the other

codefendants with the same offense level and criminal history category who pled

“straight up,” by sentencing him to the low end of the Sentencing Guidelines

range. Id. at 6. When asked if he had anything to say in mitigation, Cifuentes

asked the court to sentence him between zero and life without regard to the

Sentencing Guidelines and the minimum mandatory based on 18 U.S.C. § 3553,

citing to Blakely. Id. In response the following exchange occurred:

              THE COURT: No, you have to make the motion, you never
      know what is going to happen. I’ll deny – I’m going to – to the extent
      that is a motion, I will deny it.
              As we all know, the Eleventh Circuit Court of Appeals has
      weighed in on the Blakely controversy, held in United States versus
      Reese the Federal Sentencing Guidelines were not affected by

                                           5
      Blakely, although it’s interesting. They say the District Courts may
      consider doing something differently, but they didn’t tell us what it
      was we should be doing, and I don’t know.

            MR. SMITH [Cifunetes’s attorney]: I’m asking that he be
      sentenced between zero to life.

             THE COURT: Well, let me ask you, what if I give him more
      than 135 months and held the guidelines unconstitutional; what then?
      Is he stuck with that?

           MR. SMITH: Probably would be. I don’t think he merits 135
      months based upon his conduct.

           THE COURT: Well, I decline to do that. If the United States
      Supreme Court in their infinite wisdom say the guidelines are
      unconstitutional, we’ll just deal with these cases again, that’s all.

Id. at 6-7. At the conclusion of the hearing, the court sentenced Cifuentes to 135

months of imprisonment followed by a three-year term of supervised release. Id. at

8. The court also informed Cifuentes that there was a waiver-of-appeal provision

in his plea agreement, and, to the extent his plea agreement allowed it, he would

have to file any appeal within ten days from the judgment or he would waive any

right to appeal. Id. at 9-10.

      On appeal, Cifuentes argues that, because he was sentenced pursuant to a

mandatory sentencing scheme, his case should be remanded to the district court for

resentencing. He also argues that the district court erred in finding that he was not

a minor or minimal participant in the offense for purposes of applying U.S.S.G.



                                          6
§ 3B1.2. The government concedes that remand is necessary to correct the

application of the Sentencing Guidelines as mandatory but argues that we should

dismiss the appeal as to the mitigating-role reduction because the claim is barred

by Cifuentes’s valid sentence-appeal waiver.

                                  II. DISCUSSION

A. Statutory Booker Error

       Because of the mandatory nature of the Sentencing Guidelines, Cifuentes

argues that the district court was unable to sentence him in accordance with the

statutory dictates of 18 U.S.C. § 3553. If it had not been for the mandatory nature

of the Sentencing Guidelines, Cifuentes asserts that the court might have taken into

consideration a multitude of factors about his life, such as his impoverished

lifestyle, in fashioning a reasonable sentence. Moreover, if it had not been for the

mandatory nature of the Sentencing Guidelines, Cifuentes contends that the court

would have been able to consider the full extent of his cooperation and role in the

offense, which might have resulted in a lesser sentence. He further contends that,

in light of the court’s statements at sentencing, the government will not be able to

show that the error was harmless beyond a reasonable doubt.

      In Apprendi v. New Jersey, 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



                                           7
prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63 (2000). In

Blakely, the Supreme Court reversed an upward departure imposed under the State

of Washington’s sentencing guidelines based solely on judicial factfinding and

clarified “that the ‘statutory 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.” 542 U.S. at ___, 124 S.Ct. at 2537. 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.

      Resolving a constitutional question left open in Blakely, the Court held in

United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005), that the mandatory

nature of the Federal Guidelines rendered them incompatible with the Sixth

Amendment’s guarantee to the right to a jury trial. Id. at __ , 125 S.Ct. at 749-51.

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 statutes: (1) 18 U.S.C. § 3553(b)(1),

requiring a sentence within the Sentencing Guidelines range, absent a departure,

and (2) 18 U.S.C. § 3742(e), establishing standards of review on appeal, including



                                          8
de novo review of departures from the applicable guideline range, effectively

rendering the Sentencing Guidelines advisory only. Id. at ___, 125 S.Ct. at 764.

The Supreme Court noted, however, that courts must continue to consult the

Sentencing Guidelines, “together with other sentencing goals.” Id.

       We have clarified that there are two types of Booker error: (1) Sixth

Amendment error based upon sentencing enhancements neither admitted by the

defendant nor submitted to a jury and proved beyond a reasonable doubt; and

(2) statutory error based upon sentencing under a mandatory guidelines system.

United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). “Where there

is a timely objection, we review the defendant’s Booker claim in order to

determine whether the error was harmless.”3 United States v. Mathenia, 409 F.3d

1289, 1291 (11th Cir. 2005) (per curiam). We have explained that “[t]here are two

harmless error standards. One of them applies to Booker constitutional errors, the

other to Booker statutory errors.” Id. “[C]onstitutional errors are harmless where

the government can show, beyond a reasonable doubt, that the error did not

contribute to the defendant’s ultimate sentence. Booker statutory errors, on the

other hand, are subject to the less demanding test that is applicable to non-

constitutional errors.” Id. at 1291-92 (citation omitted). We further explained:


       3
         We review this issue despite the fact that Cifuentes executed a sentence appeal waiver
because the government assented that any Blakely argument was not waived.

                                              9
      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 1292 (citations, alterations, and omissions omitted). Nonetheless, we have

stated that “[t]he non-constitutional harmless error standard is not easy for the

government to meet. Id.

      The district judge in this case stated: “If the United States Supreme Court in

their infinite wisdom say the guidelines are unconstitutional, we’ll just deal with

these cases again, that’s all.” R3 at 7. Based on this statement, we cannot say with

fair assurance that the sentence was not substantially swayed by the error. See

Mathenia, 409 F.3d at 1292. Accordingly, the government cannot carry its burden

of showing that the statutory error was harmless, as it has conceded. Therefore, we

vacate and remand for resentencing for the sole purpose of having the district court

apply the Sentencing Guidelines in an advisory fashion in accordance with Booker.

B. Sentence Appeal Waiver

      Cifuentes argues that the district court erred in finding that he was not a

minimal or minor participant in the offense. He contends that the court focused on

the amount of cocaine involved to the exclusion of other mitigating factors. He

notes that our court in United States v. DeVaron, 175 F.3d 930 (11 th Cir. 1999) (en



                                          10
banc), does not preclude an individual engaged in the transport of drugs from

receiving a minor-role adjustment. Cifuentes distinguishes himself from the

courier in De Varon because he was a low-level crew member with no authority

who had no role in planning the operation nor any equity interest in the drugs.

Because of his lack of authority and his status as a low-level crewman, Cifuentes

argues that he was less culpable than many of those involved in the conspiracy and,

thus, the court erred when it did not grant him a minor-role reduction. Cifuentes

does not argue concerning the implications of his sentence appeal waiver on this

issue.

         We review the provisions of a sentence appeal waiver de novo. United

States v. Weaver, 275 F.3d 1320, 1333 n. 21 (11th Cir. 2001). We have recognized

that “[p]lea bargains . . . are like contracts and should be interpreted in accord with

what the parties intended.” United States v. Rubbo, 396 F.3d 1330, 1334 (11th

Cir. 2005), cert. denied, 2005 WL 2493867 (U.S. Oct. 11, 2005) (No. 04-1663).

“‘Waiver will be enforced if the government demonstrates either: (1) the district

court specifically questioned the defendant about the waiver during the plea

colloquy, or (2) the record clearly shows that the defendant otherwise understood

the full significance of the waiver.’” United States v. Grinard-Henry, 399 F.3d

1294, 1296 (11th Cir.) (per curiam), cert. denied, __ U.S. __, 125 S.Ct. 2279



                                           11
(2005). Moreover, “[a]n appeal wavier includes the wavier of the right to appeal

difficult or debatable legal issues or even blatant error.” Id.

      Cifuentes knowingly and voluntarily waived his right to appeal the district

court’s Sentencing Guidelines determinations. By arguing that the district court

should have found him to be a minimal or minor participant, Cifuentes is appealing

the district court’s application of the Sentencing Guidelines, which the waiver

explicitly prohibits. It is apparent from the record that the magistrate judge

specifically questioned Cifuentes about the waiver during the plea colloquy.

Furthermore, based on Cifuentes’s answers to the magistrate’s questions, he fully

understood the significance of the waiver. Accordingly, we dismiss Cifuentes’s

appeal as it relates to issue of whether he was a minimal or minor participant.

                                 III. CONCLUSION

      Cifuentes has appealed his 135-month sentence for conspiracy to possess

with intent to distribute five kilograms or more of cocaine while onboard a vessel

subject to the jurisdiction of the United States based on Booker and sentence

appeal waiver. As we have explained, Cifuentes’s sentence is VACATED, and he

will be sentenced in accordance with Booker on remand. Additionally, the issue he

raises on appeal concerning his sentence appeal waiver is DISMISSED.

VACATED AND REMANDED in part, DISMISSED in part.



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