                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                                June 28, 2005
                               No. 04-15481
                                                           THOMAS K. KAHN
                           Non-Argument Calendar               CLERK
                         ________________________

                     D. C. Docket No. 03-20157-CR-CMA

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

RAFI RAFAEL,

                                                           Defendant-Appellant.


                         ________________________

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

                               (June 28, 2005)

Before BIRCH, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Rafi Rafael appeals his 51-month sentence for conspiracy to defraud and
making a false bill of lading. For the reasons stated below, we affirm.

                                                 I.

       A grand jury indicted Rafael and twenty-three others for their roles in a

large-scale criminal enterprise involving fraudulent moving companies. The

conspirators submitted low estimates to potential clients, thus enabling them to

secure the moving contracts. Once the movers loaded the clients’ possessions on

their trucks, they would announce an inflated price and demand payment before

they would return the goods to the victims. The indictment charged thirty-six

counts, including conspiracy, money laundering, extortion, and creating false bills

of lading. Rafael was charged in Count One for conspiracy to defraud, in violation

of 18 U.S.C. § 371, and Count Thirty for making a false bill of lading, in violation

of 49 U.S.C. § 80116.

       Rafael pled guilty to both counts. At sentencing, the parties disputed the

amount of loss attributable to Rafael.1 The court established the amount of loss

through the following method. An FBI agent testified regarding the total amount

of fraudulent charges in the conspiracy, over $1.3 million. The agent also testified

that co-defendants stated that Rafael was involved in the conspiracy for a period of

       1
          Rafael had earlier agreed to plead guilty pursuant to a plea agreement under which the
parties would stipulate that Rafael was responsible for $211,888 of loss due to his fraud. The
district court later granted Rafael’s motion to withdraw this plea. Thereafter, Rafael pled
“straight up” to the indictment, and the parties proceeded to sentencing without a stipulated loss
amount.

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nineteen months. The Government introduced checks payable to Rafael for his

work with the movers that spanned a period of eleven months. Rafael testified that

the checks were the result of isolated moves, and did not represent the duration of

his involvement in the conspiracy. The court divided the total loss by the total

number of months of the conspiracy’s existence, and arrived at a monthly average

loss amount of $42,907. The court then found that Rafael was a member of the

conspiracy for a period of fourteen months.2 Multiplying the average monthly loss

by the number of months Rafael was involved in the conspiracy, the court arrived

at $601,580 of loss attributable to Rafael. As a result, the district court applied a

14-level enhancement to Rafael’s base offense level. In combination with Rafael’s

enhancements because the crime had more than fifty victims, and for Rafael’s

leadership role in the offense, and subtracting a two-level adjustment for

acceptance of responsibility, Rafael’s final sentencing range was 51 to 63 months.

       Rafael objected at sentencing to the district court’s enhancements based on

Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). Although Rafael

admitted to a loss amount of $80,000 (which provided for an eight-level

enhancement), he argued that Blakely made any further enhancements


       2
        As the Government acknowledges, the dates the court used spanned only thirteen
months. The difference is immaterial because the enhancement Rafael received based on loss
amount would have been the same using either thirteen months or fourteen months as the
relevant timeline.

                                              3
unconstitutional. In other words, Rafael’s position was that the Federal Sentencing

Guidelines remained in effect after Blakely, except for upward adjustments and

enhancements. The district court overruled this objection and sentenced Rafael at

the low end of the applicable range, to 51 months’ imprisonment. The court went

on to explain, though, that “I would sentence Mr. Rafael without consideration of

these Guidelines to the same amount, which is 51 months.” (R.9:51).

                                          II.

      On appeal, Rafael challenges the district court’s calculation of the amount of

loss attributable to him. He also maintains his Blakely objection, asserting that the

district court’s sentence violated his Sixth Amendment rights. Finally, he argues

that the court considered improper evidence during the sentencing hearing. We

address these arguments in turn.

A.    Amount of Loss Calculation

      We review a district court’s factual findings at sentencing for clear error, and

its legal conclusions and application of the Guidelines de novo. United States v.

Miranda, 348 F.3d 1322, 1330 (11th Cir. 2003). The Guideline under which

Rafael was sentenced, U.S.S.G. § 2B1.1, provides for upward adjustments in the

base offense level based on the loss attributable to the defendant. U.S.S.G.

§ 2B1.1. However, “[t]he court need only make a reasonable estimate of the loss,”



                                          4
U.S.S.G. § 2B1.1 cmt. n.3(C), and the Government’s burden in establishing the

amount is a preponderance of the evidence. United States v. Rodriguez, 398 F.3d

1291, 1296 (11th Cir. 2005). The Guideline specifically contemplates that

sometimes loss will have to be determined through factors such as “[t]he

approximate number of victims multiplied by the average loss to each victim.”

U.S.S.G. §2B.1.1 cmt. n.3(C)(iii). The district court employed a similar

methodology here. It is, of course, not surprising that precise records are often

unavailable in a fraudulent scheme in which the participants are usually paid in

cash. Moreover, even if some victims did not pay the entire inflated amount that

the conspirators attempted to extort from them, the Guidelines clearly instruct the

court to consider intended loss at sentencing. See U.S.S.G. § 2B1.1 cmt. n.3(A).

      The court’s calculation was not clearly erroneous. The court arrived at a

reasonable estimate of the loss amount by subtracting initial estimates from

inflated prices. Reliable evidence, including the checks to Rafael as well as his

own testimony, supports the district court’s finding that Rafael was involved in the

conspiracy for well over a year. Rafael objects on appeal that the district court did

not make a finding that he reasonably foresaw the activities of his co-conspirators,

but he did not raise this specific objection below. Our review on this issue,

therefore, is for plain error. See Rodriguez, 398 F.3d at 1298 (providing plain error



                                          5
standard). Rafael cannot establish plain error. Evidence adduced at sentencing,

including Rafael’s leadership role in the offense (an enhancement Rafael does not

challenge) and Rafael’s coast-to-coast involvement in various moving companies,

would have supported a finding that the other conspirators’ criminal activities were

reasonably foreseeable to Rafael.3

B.     Blakely/Booker

       After Rafael was sentenced, the United States Supreme Court applied its

decision in Blakely to the Federal Sentencing Guidelines in United States v.

Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). The Government concedes that

Rafael’s Blakely objection in the district court adequately preserved the Booker-

based challenge he now brings on appeal. Therefore, “we review the defendant's

Booker claim in order to determine whether the error was harmless.” United States

v. Mathenia, ___ F.3d ___, ___, 2005 WL 1201455 at *2, No. 04-15250 (11th Cir.

May 23, 2005) (citing United States v. Shelton, 400 F.3d 1325, 1331 n.7 (11th Cir.

2005), and United States v. Paz, 405 F.3d 946, 948-49 (11th Cir. 2005)).

       The Supreme Court held in Booker “that the Sixth Amendment right to trial


       3
          In any event, in light of our conclusion on Rafael’s remaining claims, he cannot
establish that any alleged error affected his substantial rights, because his sentence would have
been the same even without taking the Guidelines into account. See Rodriguez, 398 F.3d at 1299
(appellant bears burden of showing that plain error “must have affected the outcome of the
district court proceedings” by showing that the probability of a different result is “sufficient to
undermine confidence in the outcome”) (citations and quotations omitted).

                                                 6
by jury is violated where under a mandatory guidelines system a sentence is

increased because of an enhancement based on facts found by the judge that were

neither admitted by the defendant nor found by the jury.” Rodriguez, 398 F.3d at

1298.

        We have found, based on this holding, that the district courts could
        have made both a constitutional and a statutory error in sentencing
        defendants pre-Booker. The constitutional error is the use of extra-
        verdict enhancements to reach a guidelines result that is binding on
        the sentencing judge; the error is in the mandatory nature of the
        guidelines once the guidelines range has been determined. The
        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.



Mathenia at *2 (quotations and citations omitted, alteration in original). But while

the district court did err in enhancing Rafael’s sentence based on facts neither

admitted by him nor found by a jury and by sentencing him under the Guidelines,

we are convinced beyond a reasonable doubt that the errors were harmless.

        Our decision in United States v. Robles, ___ F.3d ___, 2005 WL 1083487,

No. 04-13598 (11th Cir. May 10, 2005), is materially indistinguishable. In that

case, like this one, the district court announced an alternative sentence that it would

have imposed even without consideration of the Guidelines. Robles at *2. As we

stated in Robles in discussing the constitutional error: “Now that the guidelines are



                                           7
only advisory, we know with certainty beyond a reasonable doubt what the district

court would do upon remand. When an error would not change the achieved result,

it is harmless.” The same is true here.

      In Mathenia, the district court announced an alternative sentence in a case

involving statutory Booker error. Mathenia at *1. As we stated there: “Given that

the government met the more difficult constitutional harmless error standard in

Robles, we have no trouble concluding that the government has met the less

stringent statutory harmless error standard in this case where the judge made

comments virtually identical to those in Robles. Thus, the government has

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

Mathenia’s ultimate sentence.” Likewise, given the court’s comments at Rafael’s

sentencing that it would have sentenced him to the same 51-month sentence even if

the Guidelines were merely advisory, we are persuaded that the Blakely/Booker

error was harmless.

C.    Improper Evidence

      Rafael argues that the district court improperly considered at sentencing

evidence from the trials of Rafael’s co-defendants, and that the court improperly

considered a Government exhibit without giving Rafael an opportunity to rebut



                                           8
that evidence. These arguments are meritless. First, Rafael did not object to the

court’s statement that it was familiar with the nature of the conspiracy based on the

co-defendants’ trial, and so our review is for plain error only. There was no error

because, when read in context, the court was merely indicating that it understood

that the Government would need more time to present its evidence regarding the

total amount of loss in the conspiracy. Nothing in the sentencing hearing supports

the claim that the court relied on anything outside the record in Rafael’s case.

      During the testimony of an FBI agent, the Government introduced a

summary exhibit discussing items seized under a search warrant in order to

establish the scope of the conspiracy. The court offered to grant Rafael a

continuance for the purpose of reviewing the exhibit and preparing rebuttal. At the

conclusion of the agent’s examination, however, counsel for Rafael elected to

proceed with cross-examination, and stated that a continuance was unnecessary.

This amounted to a waiver of any argument that Rafael was prejudiced by the

district court’s consideration of the exhibit. See United States v. Masters, 118 F.3d

1524, 1526 (11th Cir. 1997).

                                         III.

      For the reasons stated, we affirm Rafael’s conviction and sentence.

      AFFIRMED.



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